A dishonest auto repair shop and its shoddy work prompted a local woman to attend a Legal Aid clinic. She needed advice on how to get her money back. That’s where she met Legal Aid volunteer and Walter | Haverfield attorney, Leslie Wolfe. Their story appeared in Poetic Justice.
“Not only do patents provide legal protection against competitive activity, but they also can help generate interest and investment in a company and serve to recognize inventors for their creativity,” writes Walter | Haverfield partner Peter Hochberg in an article for Advanced Manufacturing. Hochberg explains how patents pay off over the long-term and boost a company’s reputation.
Fueled by her love of podcasts and her passion for education law, Walter | Haverfield attorney Miriam Pearlmutter started her own podcast for school administrators and teachers. Her colleague, Lisa Woloszynek joined in as her co-host. Cleveland Jewish News recently took notice, profiling Miriam and her increasingly popular podcast, Class Act: Updates in Education Law.
Walter | Haverfield partner Jacob Derenthal offered strategies for buyers and sellers to mitigate risk in mergers and acquisitions (M and A) transactions in the January 22, 2018 issue of Crain’s Cleveland Business.
A company’s intellectual property is a vital asset that should be protected. Walter | Haverfield Attorneys Kevin Soucek and Jamie Pingor list five ways that businesses can safeguard their IP in an e-article published by the Council of Smaller Enterprises (COSE), a division of the Greater Cleveland Partnership.
On December 15, 2017, the U.S. Court of Appeals for the Federal Circuit (CAFC) struck down the portion of the Lanham Act (aka the Trademark Act) which prevented immoral or scandalous trademarks from being registered with the United States Patent and Trademark Office (USPTO). The CAFC’s decision involved the term FUCT (In re Brunetti) which pertained to various types of apparel, including clothing for children and infants. However, the move did not come as a tremendous surprise. About seven months prior, the U.S. Supreme Court struck down the portion of the Lanham Act in a case (Matal v. Tam) which involved the mark, “The Slants.” The Slants decision, which was made on the basis of violating the First Amendment, received widespread attention for its seemingly groundbreaking nature. However, it was generally expected that the rationale of the Supreme Court in Matal v. Tam would be adopted by the CAFC and other lower courts in later decisions – which is precisely what has now occurred in this recent decision by the CAFC.
As noted, the issue in the Brunetti case was that the USPTO denied trademark registration to the mark FUCT. Its reasoning was that the term was considered to be scandalous and immoral in its nature, and therefore could not be protected as a federally registered trademark. The decision was appealed to the CAFC. The CAFC then essentially adopted the reasoning of the Supreme Court from its own earlier decision concerning The Slants and disparaging trademarks. In short, the CAFC determined that the restriction on registering trademarks for being “immoral or scandalous” is unconstitutional.
What does this now mean for trademark owners moving forward? Assuming that the CAFC decision in Brunetti is not appealed to the Supreme Court, it potentially opens the door for any number of terms that previously might have been considered immoral or scandalous to be registered as trademarks with the USPTO. That does not mean that all such marks will be registered since other aspects of trademark law still apply, such as the refusal to register marks that are merely descriptive or confusingly similar to a third party’s prior-registered mark. Perhaps too, the relevant portion of the Trademark Act might be rewritten in a manner that is deemed to be constitutional. Yet another possibility is that the USPTO might start taking a closer look as to whether these types of marks truly function as a trademark. And if not, then it could refuse registration for being merely informational matter. Of course, if this decision is appealed, then it would effectively continue to place any such marks on hold until the issue is finally resolved by the U.S. Supreme Court.
In the near future, we do anticipate an increase in new USPTO filings for trademarks that are potentially immoral or scandalous, as well as trademarks that are disparaging in nature. If you, as the reader, are the owner of such a trademark or have an intent to use such a mark as a trademark, then it would be prudent to file an application to register with the USPTO as soon as possible. That’s to avoid an owner of a potentially conflicting mark from filing first and obtaining an earlier filing date.
The Johnson Controls Hall of Fame Village in Canton is considered to be one of the most complex real estate developments in the region in recent history.andnbsp; Walter | Haverfield has been a key player in the project since it began, and Crain’s Cleveland Business highlights the firm’s collective bench strength in completing the required legal work.
A bloodline trust can protect a family’s inheritance, but also provide the flexibility necessary to address the needs of future generations. Lacie O’Daire, a partner in our Tax and Wealth Management group, explains in Crain’s Cleveland Business how this flexibility may be useful to current and future beneficiaries of such a trust.
Without patents and trademarks, some of the most valuable business assets in the U.S. would be left unprotected and vulnerable to misappropriation. In Crain’s Cleveland Business, James Pingor, chair of our Intellectual Property group, explains why legal protection for intellectual property should be a priority for business owners and entrepreneurs.
Amazon.com launched a new program earlier this year to protect registered trademarks and crack down on counterfeiters. Sean Mellino, a partner in our Intellectual Property group, describes the program in Crain’s Cleveland Business and writes about the benefits of registering trademarks with the U.S. Customs and Border Protection.
In an article published in the October 2017 issue of the Cleveland Metropolitan Bar Journal, Leslie Wolfe discussed a new Ohio law which is meant to encourage legitimate construction and demolition debris (C and DD) recycling while prohibiting the operation of illegal dumps.
In an article published by the Ohio School Boards Association, in its October 2017 issue of School Management News, Miriam Pearlmutter asserted that school districts attempting to resolve religious conflicts should consider the First Amendment’s Religion Clauses as well as federal and state laws on employee discrimination.
Irene MacDougall, a partner at Walter | Haverfield in the public and structured finance group, is one of 15 Northeast Ohio women to be recognized for her work in finance by Crain’s Cleveland Business.
MacDougall received the recognition on the basis of her extensive legal experience, her continued success in the field, her commitment to clients and her involvement in the Northeast Ohio community.
She is among an elite group that includes bankers, accountants, private equity principals, analysts, financial planners and other lawyers.
“It is an absolute honor to be acknowledged for the work I love to do,” said Irene MacDougall, who brings more than 30 years of legal experience to Walter | Haverfield. “I’m equally honored to be recognized alongside such impressive women.”
MacDougall manages complex, multi-party finance and development transactions in real estate, healthcare lending and public finance. Her many accomplishments include her work as developer’s counsel on the first phase of the Flats East Bank project. That phase, which totaled $275 million, consisted of 33 sources of funds, which MacDougall managed. Her success on the project earned her the Impact Award by the Commercial Real Estate Women (CREW) Network.
“No doubt, Irene is an influential woman in finance,” said Ralph Cascarilla, managing partner of Walter | Haverfield. “She is an extremely valuable leader at our firm and a highly skilled attorney whose abilities easily top those in her field.”
In the August 2017 issue of The Tax Adviser, Alexis J. Kim authored an article titled, “Contributions to quasi-governmental public-private partnerships.” Through this article, donors may gain a better understanding of how a Sec. 115(1) organization can receive tax-deductible donations without having an IRS determination letter, and quasi-governmental agencies may secure a framework to use, in conjunction with tax counsel, during formation and ongoing operations, to comply with Secs. 115 and 170.
In an article titled, “PTO Practices,” which appeared in the 2017 Summer Print issue of HR Cleveland (The Newsletter of the Cleveland Society for Human Resource Management), George J. Asimou asserted that employers need to continually review their paid time off (PTO) practices, in order to ensure that they are competitive.
An article by George J. Asimou was published in Crain’s Cleveland Business on August 6, 2017 and subsequently in Crain’s HR Guidebook. In this article, titled, “Americans are sick and tired of being sick and tired,” George discussed the Working Families Flexibility Act (H.R. 1180) and its bid to allow private sector employers to offer their employees the choice of paid time off instead of overtime compensation.
In an article written by reporter Lisa Roberson and published on August 1, 2017 in The Chronicle-Telegram (Elyria), Susan Keating Anderson was quoted extensively on the agreement which settled the Elyria firefighters’ union’s collective bargaining contract. The title of this article is, “Minimum staffing ruling means OT ahead for Elyria firefighters.”
In an article published in the July/August 2017 issue of Ohio Township News and titled, “Private Letter Rulings Help Six Ohio Land Banks Aggressively Pursue More Land Donations,” Alexis J. Kim explained Walter | Haverfield’s role in securing IRS private letter rulings for six Ohio land banks.
In an article written for Bloomberg BNA by reporter Alex Ebert, Todd Hunt commented on the dispute between the City of Cleveland and Cleveland City Council regarding Council’s ordinance providing funding for the renovation of Quicken Loans Arena.
In a Crain’s “Real Estate Guest Blog,” dated 6/13/17 and titled, “New Ohio plywood ban impacts limited number of properties, may set trend for future legislation,” Ellen Kirtner-LaFleur discussed Ohio’s plywood ban and the circumstances under which it takes effect.
In a Crain’s “Real Estate Guest Blog,” dated May 31, 2017 and titled, “New title curative statute will facilitate deals getting done, but beware of possible risks,” Joshua E. Hurtuk discussed the potential ramifications of a recent amendment to Ohio’s title curative statute.
In a Crain’s “Real Estate Guest Blog,” dated May 15, 2017 and titled, “Prohibited use clauses should make sense for the landlord and tenant,” Megan C. Zaidan asserted that prohibited use clauses in commercial leases can benefit both the landlord and tenant, but they must contain language which is flexible enough to balance the needs of both parties.
In a “Legal Guest Blog,” published in Crain’s Cleveland Business on April 26, 2017 and titled, “Intense competition for state-issued medical marijuana licenses necessitates advance preparation,” Kevin P. Murphy asserted that applicants for medical marijuana licenses must be well-prepared if they hope to secure one of the limited number of licenses available in Ohio.
In an article published on March 29, 2017 in the Elyria newspaper, The Chronicle-Telegram, Susan Anderson was recognized for her work on behalf of the City of Elyria. In this article, reporter Lisa Roberson noted that Susan has been working to determine which city employees should fall under nonexempt status and, consequently, are eligible to receive overtime payments.
In an article published by Crain’s Cleveland Business on February 18, 2017 and titled, “Protect your creative assets – here and abroad,” D. Peter Hochberg maintained that, unless a company’s creative assets are protected with registered trademarks, it could be ripped off by it competitors or it may lose its marketing edge.
In an article published in the February 2017 issue of Properties magazine and titled, “New Tools and Potential Risks in Environmental Due Diligence,” Leslie G. Wolfe and David Ricco encouraged parties to real estate transactions to remain up-to-date on emerging issues in environmental due diligence, in order to increase the chances for the success of their projects.
In an article published in the January 2017 issue of the Cleveland Metropolitan Bar Journal and titled, “Material Adverse Effect – How It ‘Affects’ M and A Transactions,” T. Ted Motheral provided an overview of “Material Adverse Effect” (MAE) in M and A transactions, along with a brief analysis of some important MAE cases.
In the “Law You Can Use” consumer legal information column provided by the Ohio State Bar Association (OSBA), published on December 22, 2016 and titled “Disposing of Household Waste: What Does the Law Require?,” Leslie G. Wolfe answered questions about the proper disposal of unwanted items.
In an article
published in the November 2016 issue of the Journal of Financial Service
Professionals, John Schiller
discussed the two principal ways that a testamentary transfer of property can be
challenged.andnbsp; In this piece, written with the assistance of Jamie Price, John also emphasized that one
should have an understanding of the applicable state laws and case law which
govern wills, trusts, or inter vivos transfers of property when he or she becomes
involved in a dispute over the legitimacy of such documents.
This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Leslie G. Wolfe, a senior associate in the Cleveland office of Walter | Haverfield LLP and a member of the firm’s environmental law group.andnbsp;
In a Crain’s “Real Estate Guest Blog,” published on October 29, 2016 and titled, “Expanded Motion Picture Tax Credits could impact real estate dealings,” John W. Waldeck, Jr. noted that Ohio’s recent increase of the Motion Picture Tax Credit could eventually lead to the construction of permanent sound stages and production studios in Northeast Ohio.
In an article published in the September 2016 issue of the Cleveland Metropolitan Bar Journal and titled, “Criminal Liability arising from Drone Operations,” Darrell A. Clay and Jessica Trivisonno asserted that drone users must operate their vehicles in a safe and lawful manner at all times, or else they may incur criminal liability for their actions.
In an online article in Crain’s Cleveland Business, written by reporter Jeremy Nobile and titled, “Walter | Haverfield law firm is growing at record rate,” Ralph E. Cascarilla discussed the firm’s recent growth.
In an article published in Crain’s Cleveland Business and titled, “Social media usage blurs legal guidelines for school districts,” Christina Henagen Peer asserted that social media has made the field of education law much more complicated and controversial.
In a Crain’s “Real Estate Guest Blog,” titled, “Three simple steps to minimize liability, legal delays and expenses during a residential construction project,” Rick L. Amburgey asserted that the parties involved in a residential construction project should prepare and adhere to a written contract in order to minimize the impact of changes or disagreements which could arise during the course of the project.
In a Crain’s “Legal Guest Blog,” posted on June 27, 2016 and titled, “After Ohio legalizes medical marijuana, do employers still have final say on use in the workplace?,” Patricia F. Weisberg discussed House Bill 523, which legalizes marijuana in Ohio, and addressed its implications for Ohio employers.
In an article published online by Crain’s Cleveland Business, Patricia F. Weisberg discussed recent events concerning bathroom access rights for transgender employees. In this piece, titled, “Are your company’s bathroom policies compliant?,” Patti also encouraged employers to resolve restroom issues at their places of business, in order to preclude their impact upon productivity and employee morale.
On May 31, 2016, Ohio Governor John Kasich signed House Bill 180. This bill prohibits a public authority/local government from requiring a contractor to employ a certain percentage of individuals from the geographic area of the public authority for the construction or professional design of a public improvement. The bill further prohibits a public authority from providing a bid award bonus or preference to a contractor as an incentive to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.
House Bill 180 was introduced by State Representative Ron Maag from Lebanon, Ohio. Maag asserted that local hiring rules shut out workers in their regions from getting construction jobs in large cities in their areas. The Ohio Contractors Association also argued that these hiring rules make it harder for contractors to hire the most qualified workers and require contractors to take on unskilled and entry-level workers.
In enacting this legislation, the Ohio General Assembly declared its intent to recognize the inalienable and fundamental right of an individual to choose where to live, that the Ohio Constitution specifies that laws may be passed providing for the comfort, health, safety, and general welfare of all employees, that it is a matter of statewide concern to generally allow employees working on Ohio’s public improvement projects to choose where to live and, therefore, it is necessary in order to provide for the comfort, health, safety, and general welfare of employees to generally prohibit public authorities from requiring contractors to employ a certain number or percentage of individuals who reside in any specific area of the state.
Due to the passage of House Bill 180, public authorities, including municipalities, may no longer pass legislation requiring contractors to hire locally. Nor may they give incentives to contractors for reaching local hiring goals.
In a “Real Estate Guest Blog, published by Crain’s Cleveland Business on June 1, 2016 and titled, “Don’t take for granted casualty provisions in commercial leases, because disaster could actually strike,” Joshua E. Hurtuk emphasized that it is important to carefully negotiate – up front – casualty clauses in commercial leases.
In an article published in the May 2016 issue of Properties magazine and titled, “Facade Inspections Mandate Adopted – with Sunset Clause,” R. Todd Hunt discussed the provisions of a recently-passed Cleveland ordinance which mandated facade inspections of older buildings in the city.
In an article published in the April 2016 issue of the Cleveland Metropolitan Bar Journal and titled, “Board of Professional Conduct Issues New Guidance on Flat Fee Agreements,” Jamie A. Price discussed a recent advisory opinion addressing flat fee agreements, which was issued by the Board of Professional Conduct for the Ohio Supreme Court.
In a “Real Estate Guest Blog,” published by Crain’s Cleveland Business and titled, “Restaurant and bar leases require special considerations,” Megan C. Zaidan noted that landlords should pay special attention when leasing space to restaurants or bars, due to the unique and critical provisions often required in their least agreements.
Marc J. Bloch was recently interviewed by reporter Bruce Meyer, for an article which appeared in Rubber and Plastics News. In this piece, titled, “USW Working to Redefine Role in Rubber Sector,” Marc opined that labor unions in mature industries, such as rubber and steel, will have a difficult time remaining relevant in the coming years. Among other thoughts, Marc asserted that, “It’s a tough fight for the union. They don’t have the leverage any more.”
In a Crain’s “Legal Guest Blog,” posted on April 5, 2016 and titled, “Latest EEOC action likely to increase retaliation lawsuits against employers,” Lisa H. Woloszynek indicated that recent proposed guidance from the EEOC essentially redefines retaliation and leaves open the door for increased retaliation lawsuits and unfavorable decisions for employers.
In a Crain’s “Real Estate Guest Blog,” published on March 18, 2016 and titled, “Focus on leasing basics now or suffer consequences later,” Sophia M. Deseran cautioned parties to commercial leases to pay attention to the details when the documents are being drafted, or face potential consequences down the road.
In an article published in the March 2016 issue of Properties magazine and titled, “Proposed City Ordinance Will Mandate Building Facade Inspections,” Jack Waldeck discussed the City of Cleveland’s effort to require building owners to conduct regular inspections of the facades of older buildings.
In a Crain’s “Legal Guest Blog,” issued on March 2, 2016 and titled, “U.S. Department of Labor issues guidance on joint employers,” Patricia F. Weisberg advised employers to take note of the recent guidance issued by the U.S. Department of Labor’s Wage and Hour Division, which focused on businesses where two or more separate entities each have relationships with the same workers.
In an online article posted on February 3, 2016 by Crain’s Cleveland Business and titled, “New Department of Labor overtime rule is expected to cost businesses a bundle,” Patricia F. Weisberg warned employers to stay abreast of all Department of Labor changes, including anticipated overtime rule changes later this year, in order to avoid financial penalties and/or criminal charges.
The local commercial real estate market continues to prosper and grow. Vacancies, on the whole, are generally down and new construction is ever expanding. Across the region deals are getting done. Leading the charge in new development is the hospitality industry which is largely energized by the need for greater capacity in order to handle demand from the upcoming Republican National Convention (RNC). The term “hotel mania” aptly describes the surge in new and renovated hotels in and around the downtown area. In 2016, we can expect to see all of those hotels coming online before the start of the Convention in July.
Hosting such a landmark event is good news, especially in the short-term. Cleveland and, in particular, the downtown area, previously had a shortage of hotel rooms which restricted our region’s ability to attract major events. Now we’ll have plenty. The long-term challenge will fall on our economic development and commerce organizations to attract sufficient events and crowds to ensure that all these new and revamped hotels maintain high occupancy rates.
So what else can we expect in 2016 beyond hotel development? Lots of other development and reconstruction are either focused on or are being forced to adjust as a result of the RNC. Preparations for and activities surrounding the RNC will likely dominate the headlines from both a business and real estate perspective at least through July.
The first half of the year will be characterized by a huge surge in construction as developers and landlords frantically work to complete projects to the Convention. In June, however, all construction work must halt in accordance with a City-imposed construction moratorium prior to and during the Convention. Between security concerns and the desire to provide an aesthetically pleasing view of the city showcasing Cleveland in a positive way for the thousands of delegates, media and outsiders that will be descending on our city, all cranes and exterior scaffolding will need to be removed prior to the RNC. Additionally, during the moratorium period, no construction materials can be transported in or out of downtown.
For downtown projects that are not directly related to the RNC, their start will likely be delayed until after the RNC has finished. Projects involving only interior work or buildouts will not be affected by the moratorium.
As to notable specific projects, one major milestone for downtown Cleveland will be the reopening of the Schofield Building at East Ninth and Euclid, that has been shrouded in scaffolding and other construction equipment for longer than many people can remember. Located at one of the busiest corners in downtown Cleveland’s business district, the building is expected to be renovated in time for the RNC. The Schofield reopening will also mark the debut of an attractive new hotel brand – The Kimpton – to the Cleveland area.
Just beyond the central business district, the Flats East Bank project continues to grow and expand its development mix, and slightly farther out, One University Circle is moving forward with anticipated construction throughout much of 2016.
The building boom that characterized Cleveland even before 2015 (but which became much more noticeable in the past 12 months) will also be reflected by a resurgence in retail activity, a direct result of the ever increasing downtown residential population. New retail stores have contracted to come downtown to give rise to a rebirth of street-level upscale retail. Heinen’s already opened with great fanfare in early 2015, Metro Home opened mid-year near E.9th and Superior, and Geiger’s opened on Euclid Avenue, just in time for the holiday shopping season. Beyond the Cleveland city limits, to the west, Crocker Park has added a hotel and is expanding its retail space and, to the east, development of the Pinecrest project near I-271 and Harvard is underway.
Another major factor affecting activity in 2016 will be interest rates. With the Federal Reserve having just increased its benchmark interest rate by a quarter point, there is an expectation that rates will continue to rise throughout the year. A rising interest rate environment will likely push investors and developers to refinance existing debt sooner rather than later.
The new year is shaping up to be exciting and prosperous for Northeast Ohio and, especially, for Cleveland. Our real estate market appears to be ahead of the national trend, largely as a result of the impact of the RNC. Moving past the time of the RNC, however, the future is a bit less certain and only time will tell which projects will continue to move forward. From a legal perspective, the overlying theme is that of optimism but a heads up to proceed responsibly since nothing this good lasts forever.
Contact: Geoffrey S. Goss
The vision for the redeveloped Pro Football Hall of Fame in Canton, known as the Hall of Fame Village, has been described by some people close to the project as the Disney World of football. While football fanatics and other visitors to the Pro Football Hall of Fame will likely marvel at the many projected improvements, they likely have little understanding of everything that had to happen behind the scenes of the $500 million redevelopment project in order to make it a reality. By the time the first phase of the project was announced last fall, Walter | Haverfield real estate attorneys were already deeply immersed in the sizable complexities of the project.
A major challenge facing our real estate team was the structuring of the deal, not only because of the large number of parties involved, but also the complexities of a true public-private partnership involving a private developer, the Pro Football Hall of Fame, the City of Canton, Stark County Port Authority and two school districts (Canton and Plain Local). The fact that a large portion of the project involves land owned by the Canton City School District presented another set of complications because school districts are subject to special rules and restrictions regarding the transfer of real property. Such ownership made the public financing component of the project twice as complex.
Another challenge was that Walter | Haverfield’s client, master developer Industrial Realty Group (IRG), had formed a joint venture with the Pro Football Hall of Fame, which is a non-profit organization governed by a Board of Trustees. The Stark County Port Authority was additionally brought into the ownership structure of the project to qualify the project for TIFF financing and a special sales exemption.
Valued at roughly $500 million, the sheer size of the project additionally made it one of the larger redevelopment projects in the region. Projected to be under construction for more than five years, the Hall of Fame Village redevelopment includes numerous phases, each representing its own set of challenges. The first phase, which is expected to be completed by August in time for the 2016 Enshrinement Ceremony and nationally televised NFL/Hall of Fame Game, focuses on improvements to the Benson Hall of Fame Stadium. Three of nine new youth fields are also part of Phase I and are expected to be completed within the next 12 months. Ground will likely be broken to begin Phase II construction after the August ceremonies and will include further stadium improvements, along with work on the new Main Street retail area which will feature a new hotel, restaurants and shops.
As part of the project’s overhaul are significant improvements to local infrastructure, including underground utilities, new parking areas, streetscape, sidewalks and electric line relocations. In order to proceed with future phases, it is expected that 100 parcels of land in Plain Township still need to be acquired and developed in time for a projected 2019 project completion date.
This is not the first time that the Walter | Haverfield real estate, public law and tax attorneys were challenged with such a complex task. In addition to the firm’s experience launching a number of large redevelopment projects in and around downtown Cleveland, Walter | Haverfield has been working with IRG to move forward on a number of phases for the Goodyear renovations in Akron. The Canton challenge has been more significant, however, inasmuch as it requires satisfying the financial and legal needs of a city, two school districts, the Port Authority, a non-profit organization and numerous private partners, as well as the legal procurement of nearly 100 parcels of land.
Fortunately, Walter | Haverfield had the necessary resources in-house to not only satisfy the various partners, but to also get the deal done before the end of 2015. The year-end completion translates into significant tax advantages as it allowed the tax exemption to begin already in 2015.
Contact:andnbsp;Nick R. Catanzarite
The overtime rule is one of the more highly anticipated and contentious regulations to come out from the United States Department of Labor (DOL) in some time, and it is now expected to be released by July of this year. Once released, employers will likely have about 60 days to comply.
Between now and then, the DOL’s Wage and Hour Division is reviewing the nearly 300,000 comments that it received on its proposed rule. The tremendous outpouring of comments is reflective of the potential impact that the rule could have in its proposed form. At stake is an update of the Fair Labor Standards Act (FLSA) that would more than double the minimum salary for the overtime exemption from $23,660 to $50,440 per year. In addition, the salary threshold will be tied to an automatic escalator to keep pace with inflation for the first time.
The DOL is also considering whether to make changes to the duties tests for exempt employees. While it didn’t address those changes in the proposed rules, it did ask for comments on whether the tests should be changed. This is all part of President Obama’s agenda – one strongly supported by labor unions – to raise wages by making more people eligible for overtime pay.
Bottom line implications for employers will be significant, not only from a dollar perspective but also with regard to personal liability. As the government has continued to crack down on violations relative to the FLSA, employers that don’t comply with various rules, including the overtime rule, face increased risk of personal liability and criminal responsibility, including jail time. While the regulations have not changed in this regard, the government’s willingness to enforce the regulations has.
In our own backyard in Akron in 2015, for example, an owner of a restaurant and his wife were sentenced to jail for hiring undocumented workers, paying them in cash, paying them less than minimum wage, failing to pay overtime, and excluding them from payroll to avoid detection. The owner was ultimately sentenced to 33 months in federal prison and had to pay $100,000.
Farther east in New York City, the owner of several Papa John’s franchises was sentenced to serve 60 days in jail last year for creating fictitious employees in an attempt to hide the overtime and for failing to pay his workers minimum wage and overtime. In addition to jail time, the owner agreed to pay $230,000 in restitution to the workers. In another case, the attorney general’s office secured a judgement of nearly $3 million against two other Papa John’s franchisees.
Yet another restaurant owner in New York pleaded guilty to charges of failing to pay minimum wage and overtime to employees who sometimes worked in excess of 70 hours a week. She will pay $47,000 for unpaid wages to six former employees. She and her corporation are scheduled to be sentenced in March 2016.
Equally noteworthy is that personal liability can extend beyond the owners and go farther down the management chain. In 2013 the Eleventh Circuit Court of Appeals (covering Georgia, Florida and Alabama) held that any individual with control over an employer’s financial affairs who could potentially cause an employer to violate FLSA regulations may be liable. The court even found that two minority shareholders had sufficient control over the company’s financial affairs to be personally liable even though they were not present at the company more than a few days or weeks each month. There was another court case several years ago in Texas where an owner, plant manager and office manager were all convicted on felony charges related to FLSA violations and had to serve time. These cases however, are often complicated by, or arise in conjunction with, immigration and other legal issues.
Without a doubt, FLSA regulations should not be taken lightly, especially in cases where multiple employees routinely work more than the standard 40-hour work week. Given the DOL’s current strategy to seek enforcement of even unintentional violations against businesses and their owners and managers, employers need to stay abreast of all DOL changes, including the anticipated overtime rule changes later this year. Employers should consult with legal counsel experienced in labor and employment issues to ensure they comply in order to avoid financial penalties and/or criminal charges.
In an article published in the January 2016 issue of Properties magazine and titled, “Challenges and Opportunities to Watch for in 2016,” Geoffrey S. Goss predicted an exciting and prosperous year ahead for Northeast Ohio’s commercial real estate market.
In an article in a special “Corporate Growth and M and A” section in the January 18, 2016 issue of Crain’s Cleveland Business, titled “Mitigate M and A risk through due diligence, deal structure and favorable terms,” Jacob B. Derenthal explained how participants in mergers and acquisitions can limit the risk arising out of their transactions.
In a Crain’s “Legal Guest Blog,” published on December 8, 2015 and titled, “Preparing for the next big cybersecurity challenge: What we’ve learned from the Sony hack of 2014,” Craig A. Marvinney asserted that any organization with an IT system must be aware of the potential of being hacked, and should proactively act to protect itself.
In an article in a special “Legal Guidebook” section in the November 16, 2015 issue of Crain’s Cleveland Business, titled, “Government cracks down on misclassification of independent contractors,” Patricia F. Weisberg urged employers to be proactive in re-evaluating their independent contractor relationships to ensure that these workers are not misclassified employees.
In an article in a special “Estate Planning” section in the November 9, 2015 issue of Crain’s Cleveland Business, titled, “Revocable Trusts Offer More Control Over Distribution of Retirement Assets,” Lacie L. O’Daire noted that some familial situations may make a revocable trust the appropriate beneficiary for a retirement account.
In a Crain’s “Real Estate Guest Blog,” published on June 8, 2015 and titled, “Don’t take estoppel certificates lightly,” Sophia M. Deseran asserted that estoppel certificates merit attention in commercial lending or sale transactions; if misunderstood, they can be problematic for all parties involved in such matters.
In a Crain’s “Real Estate Guest Blog,” published on May 27, 2015 and titled, “More projects may be delayed thanks to new restrictions designed to save endangered bat species,” Joshua E. Hurtuk advised builders and property owners to be aware, when establishing construction timelines, that their plans may be impacted by the roosting seasons of endangered or threatened bat species in northeast Ohio.
andnbsp;a Crain’s “Legal Guest Blog,” published on May 20, 2015 and titled, “Social media marketing accounts can create tangled employment-related issues,” Susan Keating Anderson provided guidance for employers looking to protect their social media assets.
In a Crain’s “Legal Guest Blog,” published on May 5, 2015 and titled, “Recent Supreme Court decision leaves employers wondering about obligations to accommodate pregnant workers,” Patricia F. Weisberg assessed the U.S. Supreme Court’s recent decision in Young v. United Parcel Service, Inc., which addressed the issue of pregnancy discrimination in the workplace.
In a Crain’s “Real Estate Guest Blog,” published on April 20, 2015 and titled, “RNC-related contracts pose special legal challenges,” John W. Waldeck, Jr. indicated that Northeast Ohio companies and individuals should consult with legal counsel in order to carefully consider which clauses in their construction contracts and leasing agreements may be impacted by the arrival of the Republican National Convention next summer.
In a Crain’s “Legal Guest Blog,” published on April 17, 2015 and titled, “Be aware of special legal restrictions when hiring teens this summer,” Patricia F. Weisberg advised employers about federal and state regulations which govern teen summer employment.
In a Crain’s “Legal Guest Blog,” published on March 27, 2015 and titled, “Family and Medical Leave Act rights have been expanded to same-sex couples,” Patricia F. Weisberg discussed the recent enactment of a “Final Rule” by the U. S. Department of Labor, which extended the Family and Medical Leave Act’s protections to married, same-sex couples.
In a Crain’s “Real Estate Guest Blog,” published on January 26, 2015 and titled, “Air right parcels: An alternate way to structure mixed-use developments,” Jennifer A. Heimlich maintained that the use of an “air right parcel” model in the structuring of mixed-use developments can be beneficial to commercial property owners.
In an article published in the January 19, 2015 issue of Crain’s Cleveland Business and titled, “Early planning yields best results when selling a business,” Jacob B. Derenthal outlined the steps which a seller should take in order to facilitate the sale of his/her business.
In a Crain’s “Legal Guest Blog,” published on January 14, 2015 and titled, “Got a drone over the holidays? Be careful before flying it for a business purpose,” Darrell A. Clay noted that people piloting drones for commercial purposes must comply with FAA policy or risk possible sanctions for their activities.
In an article published in the Winter 2014-15 issue of theandnbsp;Law-Pilots Bar Association Journalandnbsp;and titled, “Aircraft Lien Rights: One Typical State Law Scheme,”andnbsp;Darrell A. Clayandnbsp;provided advice to individuals or businesses seeking to collect on unpaid debts for services or material supplied to aircraft. In this piece, Darrell indicated that potential lienholders must closely adhere to state, federal and international laws in order to protect their interests.
In a Crain’s “Legal Guest Blog,” published on December 9, 2014 and titled, “Beware of pouring another cup of cheer at holiday office parties,” Patricia F. Weisberg provided tips on how companies can minimize their liability while ensuring that their holiday office parties remain enjoyable for all who attend.
In an online article published in the Fall 2014 issue of HR Cleveland and titled, “Facebook, YouTube, Twitter…Oh My!!,” Sara M. Markouc asserted that employers should adopt comprehensive social media policies in order to protect their interests and reputation when employees choose to use social media channels outside of the workplace.
In an article published on November 17, 2014 in a special “Legal Guidebook” section of Crain’s Cleveland Business, titled “Managing Pregnancy-Related Workplace Issues,” Patricia F. Weisberg discussed the significance of the EEOC’s recently-released enforcement guidance under the Pregnancy Discrimination Act (PDA).
In an article which appeared in the November 2014 issue of Properties magazine, titled “Plan Ahead and Negotiate Wisely to Maximize Value of Shopping Center Outparcels,” Megan C. Zaidan advised builders of retail shopping centers to create outparcels early in the construction process and to make sure that documents pertaining to their establishment, such as “Reciprocal Easement Agreements,” contain provisions favorable to the builder.
In an article published in the November 2014 issue of the Novogradac Journal of Tax Credits and titled, “Revived Historic Structures Anchor Downtown Cleveland,” John W. Waldeck, Jr. was quoted on “The 9” project and the important role which tax credits played in making it a reality.
In an article published by the Ohio State Bar Association in its quarterly newsletter, Fine Print, Patricia F. Weisberg indicated that the EEOC’s recently-released enforcement guidance regarding pregnancy discrimination in the workplace effectively mandates that employers reasonably accommodate most pregnant employees who have job restrictions. The title of this article is, “EEOC Issues Pregnancy Discrimination Enforcement Guidance for Employers.”
In a Crain’s “Real Estate Guest Blog,” published on October 27, 2014 and titled, “Negotiating Favorable Co-Tenancy Provisions in Retail Leases,” Tyler S. Bobes discussed co-tenancy provisions in retail leases and their potential financial impact upon landlords and tenants.
October 2014 – “Construction
Defects: How Long Are You At Risk?” Properties
Magazine (Legal Perspectives).andnbsp;
The September/October 2014 issue of Cities and Villages magazine featured a presentation given by R. Todd Hunt on July 24, 2014, at the OMAA Law Institute. In this piece, titled “Land Use,” Todd covered a variety of topics of importance to municipalities across Ohio, including constitutional issues in land use law, zoning code pitfalls and weaknesses, rehearings by boards of zoning appeals, and Ohio Sunshine Laws applicability.
In an article published in the October 2014 issue of Properties magazine and titled, “Expansion of Ohio’s Historic Preservation Tax Credit Program Takes Effect,” Nathan A. Felker addressed the new Ohio law which expanded the state income tax credit available to those who wish to preserve historically significant structures across the state.
In an article published in the September 2014 issue of the Cleveland Metropolitan Bar Journal and titled, “Unique Sentencing Departures: Are You Being Creative?,” Darrell A. Clay indicated that creative arguments at sentencing can sometimes result in a reduction in jail time for defendants convicted in criminal matters.
The Journal of Financial Services Professionals, through its Kenneth Black, Jr. Journal Author Award Program, has recognized John E. Schiller for his 2008 article, “Trustee Liability: A Litigator’s Perspective.” John’s article placed second among the top three pieces published in the Journal, as determined by an independent panel of judges. Named in honor of Kenneth Black, Jr., PhD, CLU, editor of the Journal for forty-one years, these awards were issued on the basis of the originality of the authors’ research and on the articles’ clarity, timeliness and appropriateness for the Journal’s readership.
In the article, “A Physician’s Last Chance,” published by the Federal Litigation Section of the Federal Bar Association, Michael J. Jordan andandnbsp;John E. Schillerandnbsp;discussed the challenges facing attorneys when contesting, through the state or federal court system, a physician’s loss of hospital privileges.
In a “Real Estate Guest Blog,” published by Crain’s Cleveland Business on August 25, 2014 and titled, “The Ohio Historic Preservation Tax Credit Program gets a boost,” Nathan A. Felker noted that a forthcoming expansion of the state income tax credit available to those undertaking the rehabilitation of historic buildings may encourage them to embark upon even more ambitious rehab projects in Cleveland over the next few years.
In an online article published on August 29, 2014 by Managed Healthcare Executive and titled, “Managing obesity from a legal perspective,” John E. Schiller asserted that the obesity issue in the United States is a public health and budget problem which can’t be ignored.
In an article published in the Fall 2014 issue of The Federation of Defense and Corporate Counsel Quarterly and titled, “Mediation in the United States Circuit Courts of Appeals: A Survey,” Craig A. Marvinney asserted that mandatory mediation programs appear to be here to stay in most circuit courts of appeals. Consequently, Counsel must be familiar with the rules governing mediation practice, as well as the rules governing appellate procedure, in order to best represent their clients’ interests.
John W. Waldeck, Jr. was featured in an online article published on July 29, 2014 by the Lorain County newspaper, The Chronicle-Telegram. In this piece, written by reporter Lisa Roberson and titled, “Elyria mayor offers 2 plans to boost businesses,” Jack urged private builders to partner with the City of Elyria’s new Community Improvement Corporation in an effort to revitalize a number of areas in and around downtown Elyria.
In an online article published by Crain’s Cleveland Business on July 26, 2014 and titled, “Employers adjust criminal background check methods,” Patricia F. Weisberg asserted that many employers, when looking to hire new employees, are now following the EEOC’s 2012 guidance regarding the use of criminal background checks. This article was authored by Crain’s reporter Judy Stringer.
In a “Real Estate Guest Blog,” published by Crain’s Cleveland Business on June 23, 2014 and titled, “As landlords seek loans, lenders increasingly seek documentation from tenants,” Sophia M. Deseran indicated that well-crafted Subordination, Non-Disturbance and Attornment Agreements (SNDAs) can benefit lenders, borrowers and tenants in commercial financing transactions.
In an article published in the June 2014 issue of Properties magazine, John A. Heer and Leslie G. Wolfe discussed the U.S. EPA’s and U.S. Army Corps of Engineers’ proposed new rule defining “waters of the United States” under the federal Clean Water Act. In their article, titled “EPA’s Controversial Rule Clarifying CWA Jurisdiction Could Negatively Impact Most Commercial Property Owners,” John and Leslie asserted that this rule, if enacted, could impact anyone who owns commercial property or who may be contemplating a real estate transaction.
An article co-authored byandnbsp;Gary A. Zwickandnbsp;and published in theandnbsp;Journal of Financial Service Professionalsandnbsp;was recently awarded one of three Kenneth Black, Jr. Journal Author Awards for best article of the year. This article, titled “Why Tax Minimization is Overrated in Estate Planning,” appeared in theandnbsp;Journalandnbsp;in March 2013 and was co-authored by James Jurinski, a professor at the University of Portland and a practicing attorney in Oregon.
In an article written for the Ohio State Bar Association’s “Law You Can Use” consumer legal information column, which was subsequently published by the Wooster Weekly News, Leslie G. Wolfe provided an overview of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This law, enacted by the federal government in 1980 in order to address contamination cleanup matters, is titled, “CERCLA makes polluters clean up their own messes.”
In a blog posted on the website of the Federation of Defense and Corporate Counsel (FDCC) and titled, “U.S. Supreme Court Upholds Michigan Constitutional Ban on Affirmative Action,” Craig A. Marvinney reviewed the Court’s decision in the case of Schuette v. BAMN, etc. In this decision, the Court upheld the Michigan electorate’s approval of “Proposal 2,” which addressed the statewide debate on the issue of racial preferences in the context of governmental decision-making.
In an article published on the Ohio State Bar Association’s website, John E. Schiller shared his experiences and advice with other attorneys, in order to help them provide their clients with the best possible service. This article, titled “Ten tips for effective counsel,” was posted under the “News and Publications” section of the OSBA’s website.
In theandnbsp;Ohio Probate Law Journal, Vol. 24, Issue 4, March/April 2014, 265, Kevin R. McKinnis wrote an article entitled “The New Kid of the Block: The Use of Ohio Legacy Trusts as an Alternative to a Prenuptial Agreement”,andnbsp;
In a Crain’s “Legal Guest Blog,” published on April 10, 2014 and titled, “No wonder labor unions are concerned,” Fredrick W. Englehart analyzed the recent union representation election at a Volkswagen plant in Chattanooga, Tennessee and its potential effect upon employer-employee relations in private companies.
In a “Real Estate Guest Blog,” published by Crain’s Cleveland Business on March 10, 2014 and titled, “Wicked winter weather demonstrates need for adequate force majeure clauses,” Joshua E. Hurtuk discussed the topic of force majeure clauses in commercial leases and construction contracts.
John E. Schiller discussed end-of-life care issues in a “Health Care Guest Blog,” published by Crain’s Cleveland Business on March 4, 2014 and titled, “The challenge of addressing end-of-life care under the current health care model.”
In an article published in the Heights Observer and titled, “John Gibbon, longtime CH law director, retires,” author Deanna Bremer Fisher recognized John H. Gibbon for his long and distinguished service as law director for the City of Cleveland Heights, Ohio.
In a Crain’s “Legal Guest Blog,” titled “Businesses increasingly find mediation a valuable tool for navigating the e-discovery process,” Sara Ravas Cooper explained how parties in a litigation matter can benefit from the use of a mediator to address e-discovery issues.
In an article published on cleveland.com on February 4, 2014, titled “Cleveland’s victory in Supreme Court reinforces home rule, but it’s not a breakthrough for cities, expert says,” R. Todd Hunt was quoted on the Ohio Legislature’s efforts, over the last few years, to limit “home rule” for cities.
In a “Legal Guest Blog,” published by Crain’s Cleveland Business and titled, “This could be a year of excessive pro-labor regulation,” Fredrick W. Englehart indicated that government activity could be favorable to unions in 2014.
In a “Law You Can Use” article, titled “Served via social media – the new ‘face’ of litigation” and published by the Ohio State Bar Association and Akron.com, Sara Ravas Cooper addressed the concept of “service of process” by social media in litigation matters.
In an article published in the January 2014 issue of Properties magazine and titled, “Progress in 2013 promises bright 2014 for commercial real estate in Cleveland,” John W. Waldeck, Jr. provided a summary of commercial real estate activity in Cleveland in 2013 and offered a glimpse at some of the projects which are scheduled for the new year.
On January 13, 2014, Geoffrey S. Goss maintained that recent historic tax credit guidance issued by the IRS should result in an increase in successful tax credit-backed projects in the future in his article, “Long-awaited IRS guidance provides clarity for historic tax credit development partnerships,” in Crain’s Cleveland Business’s “Real Estate Guest Blog.”
An article byandnbsp;Patti Weisbergandnbsp;was recently featured in “Room for Debate,”andnbsp;on online opinion forum published byandnbsp;The New York Times.andnbsp;In this piece, titled “Company Party, Company Rules“,andnbsp;Patti offered tips for employers to ensure that their holiday office parties are safe, fun and free from liability.
In aandnbsp;Crain’sandnbsp;”Real Estate Guest Blog,” published on December 16, 2013 and titled, “Making the most of exclusive-use provisions in leases for landlords and tenants,”Megan C. Zaidanandnbsp;explained the purpose of “exclusive-use” provisions in commercial leases and described how, when drafted properly, they can benefit both landlords and tenants.
In an article published online on December 16, 2013 inandnbsp;Managed Healthcare Executiveandnbsp;and titled, “End-of-life care requires national dialogue,”andnbsp;John E. Schillerandnbsp;called for stakeholders throughout the nation to engage in comprehensive discussions concerning “end-of-life care” issues.
“Drafting Formulas Based on EBIDTA,” The Practical Tax Lawyer
In an article published in the November 2013 issue ofandnbsp;Propertiesandnbsp;magazine, titled “The Life Cycle of a Property,”andnbsp;Geoffrey S. Gossandnbsp;advised owners of commercial real estate properties to rely on third-party professional help throughout the “life cycles” of their properties.
In an article published in theandnbsp;Cleveland Metropolitan Bar Journal, titled “A New Approach to Managing E-Discovery,”andnbsp;Sara Ravas Cooperandnbsp;recommended that parties to a lawsuit consider the use of a mediator to handle potential disputes which may arise over ESI or e-discovery issues.
In an article published inandnbsp;HR Cleveland, titled “After 20 Years, FMLA Still Creates Confusion and Frustration for Employers,”andnbsp;Patricia F. Weisbergandnbsp;provided advice on several items pertaining to FMLA which should be “top-of-mind” for employers.
In a “Legal Guest Blog” forandnbsp;Crain’s Cleveland Business,andnbsp;Leslie G. Wolfeandnbsp;discussed the doctrine of “vicarious liability,” as it applies to an employer’s potential liability for an employee’s risky conduct. In her article, titled “When are employers liable for employee behavior?,” Leslie advised employers to protect themselves by establishing written policies which clearly identify the boundaries of permitted and prohibited employee conduct.
“Intra-Family Loans,” Probate Law Journal of Ohio
In a Crain’s “Legal Guest Blog,” published on April 18, 2013 and titled, “If arbitration is the answer, you may have asked the wrong question“, Mark Fuscoandnbsp;provides business owners and corporate decision makers items to be aware of when considering arbitration.
March 11, 2013 –
Still another option for expanding project financing, Crain’s
Cleveland Business (Real Estate Blog)
“Why Tax Minimization is Overrated in Estate Planning,” Journal of Financial Service Professionals, co-authored with James John Jurinski, JD, CPA
In theandnbsp;Cleveland State Law Review, 61 Clev. St. L. Rev. 1105 (2013), Kevin R. McKinnisandnbsp;wrote an article entitled “The Good, the Bad and a New Kind of Prenuptial: An Analysis of the Ohio Legacy Trust Act and What Asset Protection Trusts Will Mean For Ohio”.
October 2012 – “Historic Tax Credits Face External Challenges Despite Proven Economic
September 2012 –
“Recent court decision challenges future of vital historic tax credit
program,” Crain’s Cleveland Business (Legal Guest Blog)
August 20, 2012 – “Amid financing challenges, developers consider options,” Crain’s
Physician Apologies and General Admissions of Fault: Amending the Federal Rules of Evidence, 72 Ohio St. L.J. 687 (2011)
Executive Editor, 15th ED.andnbsp; Tools and Techniques of Estate Planning, published by National Underwriter Company
“Property Received in Exchange for Services,” Lexis Nexis On-Line Tax Encyclopedia
“Transferring Interests in the Closely Held Family Business,” Legal Treatise, published by ALI/ABA; 316 pages, co-authored with James J. Jurinski
“Last Call for Alcohol? andnbsp;How the City Can Take Action Against Problem Liquor Permit Holders” was written by Susan M. Bungard and published In the Cleveland Bar Journalandnbsp;in May of 2005.
“Tax and Financial Planning for the Closely Held Family Business,” Legal Treatise, published by ALI/ABA; 586 pages, co-authored with James J. Jurinski
“Golden Opportunities in Retirement Funds,” The Ohio Lawyer, co-authored with Armond and Amy Budish
Contributor to the book, Golden Opportunities, by Amy and Armond Budish
The school year is officially underway! With this new school year comes not only the work of educating students, but also, the after-school work of coaching and teaching students in extracurricular sports, clubs and activities. School districts generally employ teachers to oversee these extracurricular activities via supplemental contracts. However, as the list of extracurricular activities for students grows, districts have more frequently sought to use the services of non-teaching employees to staff coaching and similar supplemental contract positions. At first glance, this inclination to use non-teaching personnel may seem to be an efficient solution to finding coaches and advisors. Nonetheless, employment of non-teaching personnel in these positions poses complicated legal issues. Specifically, those issues are related to a school district’s obligation to comply with the cumbersome overtime requirements of federal law – namely, the Fair Labor Standards Act (FLSA). School districts, therefore, should “think twice” before quickly resorting to non-teaching employees as alternative sources of staffing for coaching and related positions.
Overall, the FLSA requires that overtime (or time-and-a-half) be paid to non-exempt employees who work more than 40 hours in a given work week. Notably, teachers are exempt from the FLSA’s overtime requirements. As a result, when school districts employ teachers as coaches or advisors (as a “supplement” to their teaching contract), the overtime provisions of the FLSA are not triggered, and no overtime is due. Rather, the teacher is paid a flat rate per a supplemental contract for the work performed.
In contrast, non-teaching employees – such as custodians, maintenance workers, cafeteria personnel, groundskeepers or assistants – are not exempt from the FLSA. Thus, the work of non-teaching personnel in coaching and other extracurricular positions could trigger the overtime requirements of the FLSA, if the employee works more than 40 hours in a week (through a combination of their regular and extracurricular duties). A school district’s FLSA obligations become all-the-more complicated based on various overtime formulas that include the blending of rates when employees work two different positions at two different rates of pay. Equally important, the remedies available for non-teaching employees under the FLSA are extensive. They include the ability of employees to collect up to three years of back wages for a school district’s violation of the FLSA.
Additionally, even if a district decides to staff non-teaching employees in coaching and other extracurricular positions, schools still must keep in mind the mandatory hiring process for such personnel with pupil activity permits. Ohio Revised Code 3313.53 establishes that hiring process and specifically provides that a non-licensed individual who holds a valid pupil-activity program permit may be employed only after the district offers the position to qualified, licensed employees of the district. If no qualified, licensed individual is accepted for the position, then a school district must advertise the position to any licensed individual who is qualified, but not employed by the board. Only when no such person has applied for and accepted the position is a school district able to then offer the position to non-teaching employees in and beyond the school district.
All told, a school district’s employment of non-teaching personnel in coaching and other extracurricular positions presents a host of complex legal concerns that merit the attention of legal counsel. School districts are thus encouraged to contact their attorneys to assess the legal implications and potential solutions related to the employment of non-teaching personnel as coaches or advisors.
Safety-oriented assistive technology for children with special needs has proliferated in recent years. One of the more recent devices is called AngelSense. The name sounds innocuous, but its potential misuse is raising concerns for school districts.
Recently, districts have been faced with an increased number of requests to permit AngelSense in their classrooms. The device is a GPS tracker with a corresponding app, and it’s designed for parents to locate a child with special needs who may elope. While it’s not a recording device, the device does have a “listen-in” feature, which is raising red flags for many schools.
The ability of a third party to listen in to another conversation without his/her consent is a privacy concern. Some states require consent from all parties to a conversation before such a “listen-in” device can be used. However, in Ohio, only one party’s consent is required. But there are other legal issues that a school district must consider when faced with a request for student use of AngelSense (or similar device). For example, there are numerous laws that protect students from discrimination, especially a child with a disability. Those include the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. Schools must be cautious not to deny a child with a disability a service or privilege that other students can access. With this in mind, when an AngelSense request is made, a school may permit or deny the request in accordance with the district’s policies. It is important to consider relevant policies (such as those for recording/transmitting information) as well as the capabilities of other electronic devices, such as smartphones (don’t forget those have pesky features like GPS and recording, too) that non-disabled students utilize at school. Then, be sure that the school’s response to the request is applied uniformly and in alignment with such policies.
Additionally, schools may need to consider the Individual with Disabilities Education Act, Section 504 and corresponding state obligations as to whether the child requires use of the device in order to receive a free appropriate public education (FAPE). This may become an especially important analysis when elopement is a significant concern for a child. Also, be sure to document the team’s consideration of the request, including whether the device would be appropriate assistive technology for the child.
Lastly, the school may request that listen-in devices be disabled during school hours. This request can be placed into a formal agreement with the family, with specific hours set for the listen-in schedule. To enact this agreement, the school will use the school dashboard feature once it is set up by the family. While it is important to note that only a primary guardian for the device will have automatic access to edit the listen-in schedule, AngelSense can, and will, remove the primary guardian’s ability to edit the listen-in schedule should the school request it. Moreover, once a parent/guardian agrees, AngelSense can send notifications to the district when the listen-in feature is deactivated or activated.
Regardless of the route the school takes, remember to conduct appropriate consideration of a request, apply policies uniformly and analyze whether the device is necessary to provide a FAPE on an individual basis. Ultimately, districts may even find that they need to develop appropriate policies to address similar requests in the future.
The Ohio Attorney General’s office (AG) has issued an opinion regarding the obligations of education costs for students placed in out-of-state residential facilities. And while the opinion is not controlling on the courts, they may refer to it when making decisions.
There has long been confusion regarding financial responsibility for the education costs of a child in the custody of a public service agency who is placed in a private residential facility outside the state of Ohio. Is it the responsibility of the board of education of the student’s home school district, the board of education of the school district the student is moving to, or another public entity in Ohio?
The AG concluded that when an abused, neglected or dependent child is in the custody of a public agency and then placed in a private, out-of-state residential facility, in a state that is a member of the Interstate Compact on the Placement of Children, the school district designated by the court will be responsible for the costs of educating that child. The court will decide which school district holds that responsibility, based on which district is the student’s “school district of residence” under the Ohio Revised Code. Depending on a number of variables, including whether the child receives special education, different provisions of the Ohio Revised Code apply to determine which school district is the child’s “school district of residence.”
The AG based this conclusion on the Interstate Compact on the Placement of Children, which was adopted by Ohio in 2006. The Interstate Compact continues the care provided by a public agency when a child is placed in another state. The state that sends the child retains jurisdiction over related custody matters. The Interstate Compact does not determine the distribution or division of costs for educating the child. However, it does provide that such costs should be divided and assessed as they would have been if the child was placed in Ohio. For children residing in Ohio, who are in the custody of a public agency, the Ohio Revised Code designates the child’s “school district of residence” as the district responsible for the child’s educational costs. Therefore, the AG concluded the child’s “school district of residence,” as determined by the applicable provisions of the Ohio Revised Code, would likewise be responsible for the educational costs of a child’s out-of-state placement.
Although the opinion is informative, it is only general guidance. It does however highlight the need for school districts to ensure that, if they are designated the “school district of residence” for a child, the court’s determination is correct. If the school district determines that it is not the child’s “school district of residence,” steps should be taken immediately to rectify the situation due to the potential costs involved. Additionally, school districts should remember that different provisions of the Ohio Revised Code apply to “school district of residence” determinations depending on the circumstances (e.g., child requiring special education, incarcerated parent, etc.). Districts should work directly with legal counsel regarding specific situations.
Ohioans may soon be able to place bets on their favorite sports teams in bars and casinos throughout the state. This past spring, the U.S. Supreme Court struck down a 1992 federal law in Murphy v. National Collegiate Athletic Association that had effectively banned sports betting in most states. This decision has opened the door for states to legalize sports betting across the country.
The change comes more than two decades after sports betting was outlawed at the national level. In 1992, Congress enacted the Professional Sports Protection Act in response to concerns over state-sponsored sports gambling. Delaware, Montana, Nevada and Oregon were exempt from the new law as they had already established a sports betting system.
The law went unchallenged until 2014, when, in an effort to make sports betting legal in New Jersey, lawmakers there repealed provisions of its state law that prohibited sports gambling. The major professional sports leagues and the NCAA brought an action in federal court against the state. The case made its way up to the Supreme Court, which held PASPA to be unconstitutional because it requires states to maintain their existing laws against sports gambling without alteration.
The result of Murphy is that each state can now decide whether to legalize sports betting and how to do it. While many states have quickly moved to make this a reality, Ohio is taking a more deliberate approach. In July 2018, placeholder bills were introduced in both the Ohio Senate and House of Representatives to begin the process of drafting sports betting legislation.
Since the proposed bills are only placeholders, we do not yet have any actionable details on what guidelines Ohio plans to put in place, how it plans to regulate betting practices, or what businesses will be permitted to participate. Supportive legislators are hopeful that a sports betting bill will reach the Ohio Senate and House floors soon after the November election, although it is unlikely Ohio will pass any legislation until 2019 or 2020.
With the exception of the Ohio Lottery, casinos and charitable bingo, the Ohio Revised Code currently prohibits any organization or individual from operating a gambling house or allowing public gaming to occur on premises. And the Ohio Constitution has certain prohibitions as well. Ohio legislators will need to determine whether authority exists in Ohio to allow sports betting through legislation and possibly even a constitutional amendment.
If legislators can find a way, sports fans will legally be able to collect their winnings on placing an Ohio-based wager for the Cleveland Indians to win the World Series or the Browns to win the Super Bowl. Until then, fans can only dream.
On November 2nd, 2018, an Ohio law goes into effect allowing records and contracts secured by blockchain data. This comes after Governor John Kasich signed Senate Bill 220 (SB220) in August, which amends Ohio’s Uniform Electronic Transactions Act (UETA).
UETA ensures electronic transactions are enforced to the same effect as written transactions. SB220 amends the definition of “electronic record” in UETA to add that “a record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic record.” SB220 also amends the definition of “electronic signature” to expressly provide that signatures secured through blockchain technology are considered to be in electronic form and be an electronic signature.
SB220 was born out of Senate Bill 300 (SB300), which was introduced in May 2018. SB300 sought to implement blockchain and its associated technologies into Ohio legislation even further than SB220 as it also defined “blockchain technology” and “smart contract.” SB300 died in the Senate, however, and only a few of its provisions were implemented via SB220.
Ohio joins Arizona, Delaware, Illinois, Nevada, Tennessee, Vermont and Wyoming as states enacting or adopting laws that reference blockchain. Meanwhile, California legislatures continue to work on their blockchain legislation. Legislatures in Florida and Nebraska have also proposed blockchain legislation, but the pursuit of passing the legislation has been abandoned indefinitely.
When attempting to protect the appearance of a product as opposed to its utility, either trademarks or design patents may be appropriate. It can be difficult to determine which type of intellectual property protection to pursue. Though they are separate protection vehicles, trademarks and design patents may well complement each other as described below:
A design patent offers protection for the design for an article of manufacture, or put differently, the configuration, shape or surface ornamentation of a product or some combination thereof. This allows a manufacturer to reap the benefits of design efforts by making the production of knockoff products illegal. Assuming the protected product is of good quality, this builds good will with those who purchase the product. Unlike a utility patent, a design patent does not protect how the product functions, simply how it looks; it cannot be functional.
A registered trademark is essentially official recognition of a brand by the government. It identifies the manufacturer as the source of the products associated with the mark. Trade dress is a particular type of trademark that protects the design of a product (essentially the packaging, color, flavor, shape, configuration and other distinctive physical characteristics). Trade dress works to associate the design, and thereby the product, exclusively with its manufacturer. Like a design patent, a trademark cannot be functional.
Infringement of a design patent can result in damages of a reasonable royalty fee and up to three times the amount found or assessed. Unlike utility patents or plant patents, design patent damages can also include the total profits of the infringing party but not less than $250. Note that, given recent Supreme Court precedent, if an article of manufacture (e.g. something made by hand or with a machine) protected by a design patent is one of many components that comprise a product, recovery may be limited to a portion of profits attributable to the protected component. Attorney’s fees may also be recoverable. Additionally, infringement may be stopped by an injunction prohibiting continued unauthorized use.
Infringement of trade dress may include court costs of the defendant, profits earned and an attorney’s fees. As with design patents, infringement may be stopped by an injunction prohibiting continued unauthorized use.
Which Vehicle to Choose:
The best vehicle to protect your product depends on a number of factors. You should consider how soon you want your protection to start, when it will end, and how the protection you choose will impact your business plan. A design patent can be obtained quickly—in a matter of months- allowing you to immediately prevent competitors from copying your design. Trade dress protection cannot be secured unless the applicant has used the mark in commerce and acquired secondary meaning (e.g. customers associate the mark exclusively with the manufacturer), which takes five years. A design patent expires 15 years after it is granted while trade dress, being a trademark, has an initial term of 10 years. But it may be renewed indefinitely for 10-year increments. Patent design protection remains even if the patent is never used. Conversely, trade dress must be used continually in commerce to be preserved. However, use of trade dress in commerce before securing a design patent may disqualify an applicant from securing a design patent for the same product or product component. As nothing prohibits simultaneous possession of both a trademark and a design patent, design patent protection and trade dress protection can be held simultaneously for the same product.
The U.S. Supreme Court has agreed to review a case which should clarify the longstanding question of whether a copyright owner requires a federal copyright registration in order to bring a federal suit. The Supreme Court will hear the case (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC) and is expected to clarify the issue when it begins its next session in October.
This development may likely underscore the importance of securing a U.S. copyright registration as soon as possible, if you don’t already have one. Any delay in securing official registration status may further expose a body of work to infringement or misappropriation to the point that it’s too late to recover adequate monetary damages.
Registering a copyright (which is the exclusive legal right given to an originator or an assignee to print, perform, film or record literary, artistic or musical material) is especially advisable because the federal courts have historically been divided on the issue. That, in turn, causes continued confusion for the public as to how most effectively (and when) to protect copyrights. For example, the Tenth and Eleventh circuits take the approach that an issued copyright registration is required to bring a lawsuit. There are others, such as the Fifth and Ninth circuits, that believe merely filing an application to register a copyright with the U.S. Copyright Office is sufficient to initiate a federal suit. Then there are circuits, such as the Sixth Circuit (which includes Ohio), that have not taken a formal position on the issue. However, the lower district courts in the Sixth Circuit appear to generally take the stance that a copyright registration is needed. Lastly, the U.S. Copyright Office itself has weighed in and believes the registration approach is appropriate.
The time it takes to secure a copyright registration can be more than a year from the time of filing an application. So, it is prudent for copyright owners to consider filing early and often, especially since the process is relatively inexpensive.
If you have copyright questions or concerns, please reach out to our Intellectual Property team. We’d be happy to help.
The admission comes after a firm client requested that Walter | Haverfield defend a complex employment matter. The client has significant presence in New York, and the matter involves alleged violations of federal employment law.
Fusco, a partner in the firm’s Litigation group, has extensive experience leading litigation teams and first-chaired jury trials. He has also argued key pretrial motions and managed commercial class action litigation. Recently, Fusco expanded his practice to represent school boards and other educational entities in business disputes.
Russo, an associate in the firm’s Labor and Employment group, focuses her practice on negotiating collective bargaining agreements and allegations of discrimination and harassment. She works with private and public sector employers in matters involving failure to accommodate, wage/hour violations and enforcement of restrictive covenants before federal and state courts as well as administrative agencies.
Fusco and Russo are the only two Walter | Haverfield attorneys admitted to the Federal District Court for the Northern District of New York.
The Supreme Court’s June 27, 2018 Janus v. AFSCME decision may prove to be the most significant labor law case in half a century. The 5-4 case outlaws mandatory “fair share” fees for public employees who refuse membership in unions.
Early post-Janus analysis indicates that the ruling is having a severe financial impact on public sector labor unions in the 22 states – including Ohio. Prior to this case, the law had permitted the imposition of involuntary agency fee deductions from workers’ payroll.
In July, several state governments stopped collecting tens of millions of dollars in agency fees. For example, the state of New York did not collect between $9 and $10 million in fair share fees on behalf of public unions in that state. This does not even include fees formerly collected by county, local or school governmental entities.
The union membership rate has been falling in the private sector for decades, but has been holding steady at about 35% in the public sector for the past 35 years. Now that the public sector unions are seeing the early effects of dropping revenue and, likely, a drop in membership, they will have to reconsider their priorities and how they do business in order to adapt to these new realities.
The three largest public sector unions are the National Education Association at 3 million members; the American Federation of Teachers at 1.6 million members; and the American Federation of State, County, and Municipal Employees at 1.3 million members. According to the Department of Labor, these three unions collectively spent $119.8 million on “political activities” in 2017. This is a comparatively large sum in light of the $153.9 million these three unions collectively spent on representing their membership and organizing.
As a result of these financial pressures, skirmishes are beginning to crop up among Ohio’s 3,200 public sector bargaining units, and administrators should be prepared to address: (1) questions about how union members are permitted to withdraw membership, (2) whether the union’s withdrawal policy is lawful, and (3) what employers are permitted to say to their employees about withdrawal from the union.
Public employers must familiarize themselves with any withdrawal provisions contained in collective bargaining agreements. Recent cases have held that contractual “window periods” and union membership withdrawal requirements done via certified mail are lawful. More stringent requirements should be carefully analyzed by counsel to determine whether the requirements are arbitrary, discriminatory, misleading, ambiguous, or otherwise impermissibly restrictive. For instance, one recent case held that a withdrawal provision was impermissibly restrictive when it required a resigning union member to appear in person at the union hall with a valid photo ID and declare his intent to withdraw in writing.
Now more than ever, dissatisfied union members are turning to their own employers for help and advice when trying to get out of their union. While Ohio’s State Employment Relations Board has not yet squarely addressed which sorts of communications employers are permitted to have with their employees on the issue of withdrawal, employers should work closely with counsel. Together, they should formulate plans for communication with employees that are permissible within the bounds of the Ohio Public Employee Collective Bargaining Act. Public sector unions are already putting shots across employers’ bow on this topic. Backed into a corner, Ohio unions have already issued blanket written threats of filing unfair labor practice charges against public employers related to communications with employees.
Most importantly, employers should consciously take steps to:
- Protect their employees from unlawful pressure exerted on them to remain in the union, and
- Work with labor counsel to form solid proposals that bring collective bargaining agreements in line with current law and address the needs of the employer.
Public employers should work proactively through these considerations before they become potential problems.
“Last Call for Alcohol? How the City Can Take Action Against Problem Liquor Permit Holders” was written by Susan M. Bungard and published In the Cleveland Bar Journal in May of 2005.
Much of eminent domain litigation focuses on disputes over property valuation. Generally, these disputes are resolved by the parties submitting expert testimony regarding valuation, followed by a jury deciding what constitutes “just compensation” for property taken and, if necessary, any residual damage to the private property not needed for the public project.
Recently, however, the 11th District Court of Appeals published an opinion in a case where a private property owner took a different approach to challenging valuation.
In Lawnfield Properties v. City of Mentor, the City of Mentor needed to “take” a portion of land owned by Lawnfield Properties for a road widening project. The City secured an appraisal of Lawnfield’s land and provided it to Lawnfield along with a “good faith offer” to acquire Lawnfield’s land. Lawnfield rejected the City’s offer, taking the position that the City’s offer failed to compensate them for residual damage to their property. Specifically, Lawnfield argued that the City’s offer failed to compensate them for the relocation of a sign, the loss of parking spaces in a parking lot, the loss of a curb cut, and a temporary loss of the outdoor patio and swimming pool.
After Lawnfield rejected the City’s offer, the City filed a lawsuit in Lake County Probate Court to appropriate the property. Lawnfield responded by filing a lawsuit in Lake County Common Pleas Court. Lawnfield wanted the court to issue an injunction prohibiting the City from litigating the appropriation case until the City obtained an amended appraisal that accounted for the residual damage to Lawnfield’s property. Lawnfield also sued the City under a theory that it was acting in bad faith by failing to provide a good faith offer that accounted for the residual damage to the property.
The City asked the Common Pleas Court to dismiss Lawnfield’s case. The City argued that Lawnfield’s injunction action was merely a challenge to the city’s valuation method, not grounds for a separate injunction action. With respect to the bad faith action, the City argued that its appraiser determined that there was no damage to the residue of Lawnfield’s property, and as such, the City could not have acted in bad faith.
The trial court granted the City’s motion to dismiss. Lawnfield appealed the case to the Court of Appeals. Then, the 11th District affirmed the trial court’s decision, finding that probate courts have jurisdiction over challenges to the methodology used in determining the amount of compensation payable to a private property owner in an eminent domain action.
Lawnfield is significant because it makes clear that, although there are procedural and substantive defenses available in eminent domain actions, a challenge to an appropriating authority’s valuation methodology ultimately must be decided by a jury in the probate court.
Walter | Haverfield represents both appropriating agencies and private property owners in eminent domain litigation. If you need assistance with appropriating private property for a public project, or if your private property is being taken for a public project, the attorneys in Walter | Haverfield’s public law group are available to offer assistance.
Every commercial landlord should be familiar with the phrase “retail apocalypse.” It’s a phrase that refers to the recent epidemic of retail store closings, many of which were the result of those companies filing for bankruptcy. Unfortunately for landlords, store closures and other vacancies are trends that do not appear to be slowing. And it’s important that landlords are aware of their rights in bankruptcy and the potential traps involved. Here’s what commercial landlords need to remember as they navigate this dynamic landscape:
The Automatic Stay
Once a tenant files for bankruptcy, an automatic stay or injunction is invoked to protect that tenant from new or continued collection activities. It also prevents landlords from initiating an eviction, changing the locks or even demanding payment of past-due rent. A landlord’s violation of an automatic stay may allow the tenant to recover actual damages, including attorneys’ fees and, in some cases, punitive damages.
A landlord can file a motion with the bankruptcy court to seek relief from the automatic stay if certain conditions are met. Landlords should be aware that automatic stay is applicable even if the terms of the lease state that the lease is terminated upon the filing of a bankruptcy case.
Lease Assumption and Rejection
Under Section 365 of the Bankruptcy Code, a tenant has the option to assume or reject the remainder of the lease. If the tenant does not assume the lease prior to 120 days after the petition date or the date confirming a plan of reorganization, then the lease is considered rejected. The tenant then must immediately surrender the property to the landlord. That period may be extended by 90 days upon motion.
Often, the tenant will reject the lease for economic reasons. In such cases, the landlord becomes an unsecured creditor with a claim for damages for unpaid rent based upon the statutory formula in § 365. However, as a result of being a general unsecured creditor, a landlord will likely receive less than the actual amount of the rejection damages claim.
Also, the rejection of a lease does not remove a tenant from the leased premises. The landlord may need to incur additional expenses in removing the tenant through an eviction action in state court.
Fortunately, even if the tenant rejects a lease, it is liable to the landlord for rental payments that became due after the petition was filed and before the tenant rejected the lease. These and other monetary lease obligations are paid as administrative expenses, which allows the landlord to recover those amounts on a priority basis.
From the landlord’s perspective, it is clearly preferable that the tenant assumes the lease. Not only do the premises remain occupied, but the tenant must also provide assurance that they will be able to address any defaults and meet the terms of the lease. The tenant may also assign the lease, or sublet, to another tenant. This occurs when the lease has value, but the tenant does not want to continue to operate in that location. Because the Bankruptcy Code provides that anti-assignment clauses in leases are generally not enforceable in cases of bankruptcy, the tenant has a lot of leeway in determining whether to assign a lease to another party. If they choose to assign the lease, the tenant must reconcile any past debts and ensure the new tenant will be able to meet the terms of the lease.
If the lease involves premises within a shopping center, the landlord generally has more protections against assignment. In order to assign a lease in a shopping center, the tenant must demonstrate that the new tenant can fulfill the obligations of the lease, any percentage of rent due will not decline substantially, the original terms of the lease still apply, and the assumption or assignment of the lease will not disrupt any tenant mix in the shopping center.
Proof of Claim
If a landlord is owed damages by a tenant, it must file a proof of claim by a claims bar date. The landlord may not know the amount of damages to claim by this date if the tenant has not yet decided to assume or reject the lease. As a result, landlords are provided a certain amount of time to assert damages if the tenant rejects the lease. It is important that a landlord be aware of these dates and file a proof of claim in a timely fashion.
As rumors that large retailers and smaller companies are on the brink of bankruptcy continue to swirl, it is clear that the “retail apocalypse” is not ending soon. Commercial landlords would therefore be well served to gain a thorough understanding of their rights and restrictions when dealing with a tenant in bankruptcy. Doing so will allow them to recover the money they are rightfully owed and avoid having legal action taken against them.
Patrick Hruby is an attorney in Walter | Haverfield’s Corporate Transactions group. His practice also extends into the Litigation Services group. He can be reached at firstname.lastname@example.org or at 216-619-7878.
Jamie Price, an attorney who focuses her practice on civil, commercial and probate litigation, recently joined the Cleveland Bridge Builders class of 2019. The Mobile, Alabama native applied for the competitive 10-month program, which teaches participants how to create meaningful change around a civic issue impacting Northeast Ohio.
“I sought out Bridge Builders to gain a deeper understanding of the civic community in Cleveland and find a hands-on way to give back” said Price, who is an avid runner. “I’m proud to be a part of such a fantastic program.”
Bridge Builders includes 60 local participants in its latest class, all of whom were chosen because they demonstrated a commitment to the community, strong leadership and problem-solving skills.
Price has been highly involved in the Anti-Defamation League (ADL) for the past decade. She serves on its regional board and is a part of the ADL’s national civil rights committee. The Shaker Heights resident is also a new member of the National Council of Jewish Women and serves on the Ethics and Professionalism committee of the Cleveland Metropolitan Bar Association.
As part of the program, participants apply their skills to assist a local community organization in boosting its strategic efforts and overall effectiveness.
“I’m eager to find my place within the civic realm of Cleveland and pinpoint an organization in which I can become involved,” added Price, who was selected to the Ohio Super Lawyers 2018 Rising Stars list for business litigation. “And throughout the Bridge Builders program, I look forward to learning more about myself and others. That process will help me become a more effective leader and communicator to ultimately assist others in need.”
Northeast Ohio’s vibrant commercial real estate industry has not only triggered a construction boom, but has resulted in greater volumes of construction and demolition debris (CandDD) that must either be recycled or landfilled. While most of this material is sent to disposal facilities licensed under Ohio law or to recyclers that run responsible, environmentally-friendly operations, some waste finds its way to illegal dump sites. These sites often collect and then abandon large volumes of waste material, creating nuisance conditions and leaving local communities and the state to bear the cost of cleanup.
The six-acre Arco dump in East Cleveland is one such site. It is considered one of the worst illegal dump sites in the state, and it sits in the middle of a residential neighborhood. Throughout this year, the Ohio EPA and Cuyahoga County have worked to clean up the site and hold the property owner accountable. The clean-up effort could cost as much as $6 million in state funds.
Thanks to new legislation signed by Governor Kasich in July, sites like the Arco dump may become less common and their owners easier to prosecute.
Amended Senate Bill 2 (S.B. 2) gives the Director of the Ohio Environmental Protection Agency (EPA) new authority to regulate CandDD recycling in Ohio. State regulators and the CandDD industry alike welcomed the passage of the bill. The new law is designed to encourage legitimate CandDD recycling while preventing the operation of illegal dumps.
As legal counsel to the Construction and Demolition Debris Association of Ohio (CDAO), an industry group representing CandDD landfill operators, Walter | Haverfield LLP played an integral role in drafting S.B. 2. This included submitting written comments and proposed language for the bill itself. We also participated in numerous Ohio EPA working group meetings on behalf of the CDAO and many of its member facilities who are also long-time firm clients.
CandDD is material resulting from the construction or demolition of man-made structures, such as houses, buildings or roadways. It includes non-hazardous materials such as brick, concrete, stone, glass, wall coverings, plaster, drywall, wood and roofing materials. Because CandDD is generally considered to be inert and poses little threat to the environment as compared to other wastes, Ohio regulates CandDD disposal separately from municipal and household solid waste.
Before S.B. 2 was passed, Ohio EPA had authority to license and regulate CandDD disposal facilities but not CandDD recyclers, even though many disposal facility operators had begun separating valuable recyclables for resale. The existing law did not prevent unlicensed operators from illegally collecting and storing mixed CandDD under the guise of recycling.
Ohio EPA now has the authority to develop regulations for CandDD recyclers (called “processing facilities”) to ensure that they will not create a nuisance, fire hazard, health hazard, or cause or contribute to air or water pollution. The new rules will include permit and licensing programs, plus requirements for the location, design, construction, operation, and closure of CandDD processing facilities. The rules may also cover the type of materials that can be recycled, how long they can be stored, and how much can be accumulated.
Most importantly, the new rules will require recyclers to establish financial assurance in case they go bankrupt or are otherwise unable to close properly. Ohio EPA’s newly-expanded legislative authority will allow greater control and oversight of the recycling industry to prevent future Arcos and safeguard public health, safety and the environment across Ohio.
Leslie can be reached at 216-928-2927 or email@example.com.
- “Disparaging or offensive language is prohibited.”
- “Employees may not engage in disrespectful conduct.”
The above rules might seem reasonable to you or perhaps you have seen them in your own company’s employment policies. However, prior to the National Labor Relations Board’s (“NLRB”) ruling in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), these types of work rules would likely have been considered unlawful by the NLRB. That’s because a 2004 NLRB ruling (Lutheran Heritage Village-Livonia) found that employees could “reasonably construe” such policies as restricting their ability to participate in “concerted activity” for “mutual aid and protection” under the National Labor Relations Act (NLRA).
In June 2018, the NLRB’s General Counsel Peter Robb issued a memo titled “Handbook Rules Post-Boeing,” which provides helpful guidance in an area where there was once not much reliable guidance at all. Following Boeing, the Board has indicated that it will approve the use of rules that promote “harmonious interactions and relationships” or “civility” in the workplace. Handbook rules are now split into the following groups: (1) rules that are generally lawful to maintain; (2) rules which will warrant individualized scrutiny and review by the General Counsel’s Office; and (3) rules that are clearly unlawful to maintain. Below are the types of rules that fall into each category:
(1) Rules That Are Generally Lawful
Civility rules, no-photography and no-recording rules, rules against insubordination, disruptive behavior rules, rules against defamation or misrepresentation; rules protecting confidential or proprietary information; rules against using employer logos and/or intellectual property; rules requiring employees to receive authorization to speak for their employer; and rules banning disloyalty.
(2) Rules Which Require Greater Scrutiny
Broad conflict of interest rules; broad confidentiality rules; rules regulating disparagement or criticism of the employer; rules regulating use of the employer’s name; rules restricting speaking to the media; rules banning off-duty conduct that might harm the employer; and rules against making false or inaccurate statements.
(3) Clearly Unlawful Rules
Confidentiality rules that specifically mention wages, benefits or working conditions; and rules against joining outside organizations.
Although the Board’s guidance is certainly helpful, careful crafting of employment policies is still necessary.
The Family Policy Compliance Office (“FPCO”) now offers school districts a tentative framework for responding to parents’ requests for videos. Often such footage – a security video of a cafeteria fight, for example – includes images of multiple students, which may all be individually protected by FERPA, the Family Educational Rights and Privacy Act. For years, school districts struggled with how to handle such requests, what to release, to whom, and what to redact, if anything.The FPCO’s long-awaited guidance document (Letter to Wachter) describes a school district that received a records request for video footage of a hazing incident. The incident involved six perpetrators and two victims. The request came from a parent of a perpetrator, but the district noted that it did not have the resources to redact other students’ images. The FPCO explained that the video footage was an educational record for both the victims and the perpetrators, but would not be considered a record for bystanders who were not involved in the incident. Further, the FPCO explained that if redaction was impossible or would destroy the record’s meaning, the district may allow the parent to inspect and review the video, even if other students are pictured. Notably, FERPA requires districts to allow parents (or eligible students) the opportunity to inspect and review the record, but does not require – in most circumstances – districts to provide parents with a copy.
In determining whether to release video footage depicting multiple students, districts can begin by considering the following questions:
- Is the video footage an educational record for any student? If not, FERPA does not apply.
- If the video is an educational record of multiple students, will parents of the other students featured in the footage consent in writing to the release of the unredacted educational record? If they would, this may be the simplest way to comply with FERPA requirements.
- Is it possible to redact the video footage so as to conceal the other students’ identity but also maintain the record’s meaning? If not, the district may allow parents to view the unredacted record even if other students are pictured.
- Must the district provide a copy of the video to the requesting parent? Districts are not obligated to provide copies unless requiring parents to come in and review the video effectively prevents them from accessing the record. This might occur if a parent lives far away or is disabled.
Although the FPCO guidance is informative, it remains unclear how these directives will interact with other statutes affecting student records, including Ohio’s Sunshine Laws. Issues related to the release of video footage that contains student images are extremely fact specific, and the information in this alert is intended to provide general guidance. School districts should work directly with legal counsel regarding specific situations.
Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at firstname.lastname@example.org or at 216-619-7861.