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Nick BuzzyCraig Marvinney

 

 

 

 

 

 

 

You trusted your insurance agent with your company’s insurance coverage. What could go wrong? The Ohio Supreme Court recently made it clear that upon receiving that new policy or renewal you must, as President Ronald Reagan used to say, “trust, but verify.”

The Ohio Supreme Court puts the onus on the policyholder to educate himself/herself of policy exclusions before an insurance company denies coverage or other problems arise. The ruling starts the clock on the time period of when one may sue for any agency errors, omissions, or professional malpractice claims once an insurance company issues the written policy of insurance.

The time in which a plaintiff can file a lawsuit is the statute of limitations. This varies depending on the type of case, i.e. personal injury, contract dispute, etc. After the statute of limitations expires, a plaintiff cannot bring suit to recover damages. In Ohio, the statute of limitations normally begins when an injury or damage occurs. One exception to this general principle is the “delayed-damage rule.” Under this rule, the statute of limitations period does not begin until the wrongful conduct causes actual damage.

In LGR Realty, Inc. v. Frank and London Insurance Agency, the Supreme Court put the “delayed-damage rule” in the spotlight. A business made a claim under its insurance policy to defend a significant lawsuit involving one of its properties. The insurance company denied coverage on the basis of an exclusion provision for that property in the policy. As a result, the business paid over $420,000 in attorney fees and expenses over the next few years to defend the lawsuit. These were the “delayed damages.”

The business then filed a professional malpractice lawsuit against its insurance agent for these fees and expenses. It claimed that the agent neglected to make sure the particular property was insured. The trial court dismissed the lawsuit because it was filed more than four years after the policy took effect. This exceeded the statute of limitations. The Ohio Court of Appeals reversed the trial court and instead followed the delayed-damage rule. The appeals court reasoned that the business was not actually harmed until the insurance carrier denied the claim thereby leading the business to pay significant attorney fees in defending the lawsuit.

The Ohio Supreme Court reversed the appeals court, ruling that the delayed-damage rule does not apply in professional malpractice claims. The court held that the statute of limitations period begins when an individual or business is issued an insurance policy. The court stressed that it was the policyholder’s duty to determine whether there were any policy exclusion errors.

The LGR decision means that individuals and businesses should check the new or renewed policy with their agent to ensure all the coverages intended actually exist in the new policy at or near the time the policy is received. The decision tightens the timeframe for an individual or business to seek recourse against an insurance agency if the agent fails to disclose all the coverages are what were intended.

Individuals and businesses should consult with counsel to make sure there are no uncertain areas of coverage or exclusions in their policies. Otherwise, if a claim arises it may be too late to seek coverage or file a lawsuit if an insurance company denies coverage for the claim.

Craig Marvinney is a partner at Walter | Haverfield who focuses his practice on business, commercial, insurance and complex litigation. He can be reached at cmarvinney@walterhav.com or at 216-928-2889.

Nick Buzzy is a former attorney at Walter | Haverfield who focused his practice on litigation.

 

 

 

Committed to its mission of offering personalized service to our growing number of clients, Walter | Haverfield has hired Nicholas Buzzy to its Litigation team and Gail Bisesi to its Real Estate team.

Buzzy is a dedicated, dynamic attorney with experience in wide-ranging complex litigation. The Northeast Ohio native has successfully defended multiple cases at trial, valued at more than six figures. That includes personal injury as well as business interruption cases.

“I’m passionate about my work as a litigator and proud of the success I’ve had thus far in defending big cases,” said Buzzy. “I now have the opportunity to continue to do what I love on an even bigger scale with a strong, hard-working team, and I’m very thankful for that.”

Buzzy has also defended a variety of corporations in products liability cases as well as individuals on a variety of disputes. Buzzy most recently worked at the Cleveland-based law firm of Gallagher Sharp as a litigation attorney. Prior to that, he served as an assistant prosecuting attorney for Summit County, Ohio.

Bisesi brings more than two decades of real estate experience to Walter | Haverfield. She joins the firm as a paralegal and previously worked at law firms, in banks and with developers in the Northeast Ohio region.

“I was looking for a firm that has a strong real estate practice group, and that’s why I sought out Walter | Haverfield,” said Bisesi, who is also a Northeast Ohio native and enjoys working at the Cleveland Film Festival each year.

“Our goal is to find highly skilled and qualified individuals to serve our clients in ways that align with our strong values and high standards,” said Ralph Cascarilla, managing partner of Walter | Haverfield. “Nick and Gail will be able to deliver that superior service, and I’m happy to have them on board.”

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public entities and high net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Our track record has allowed us to sustain year-after-year growth. Walter | Haverfield has more than doubled in the past decade to become one of Cleveland’s top ten law firms. Today, our team of nearly 80 attorneys is focused primarily in the areas of corporate transactions, real estate, intellectual property, labor and employment, tax and wealth management, liquor control law, litigation, public law and education.

 

Sara FagnilliOn June 27, 2018, the United State Supreme Court in Janus v. AFSCME, overruled its 1977 decision of Abood v. Detroit Board of Education, and held that unions may not charge “agency fees” (known as “fair share fees”) to public employees who choose not to join the union. The Court found that payment of fair share fees by non-union members violates the First Amendment, which includes the right to be free from compulsion to engage in speech contrary to one’s beliefs.

The Court rejected a number of arguments in support of Abood. Notably, the Court dismissed the “risk of free riders.” That means the risk of non-union members utilizing union benefits without paying dues, finding that risk insufficient to overcome First Amendment concerns. The Court reasoned that unions could implement other strategies to cover the cost of grievance or arbitration representation for non-members, thereby eliminating that risk. Finally, the Court expressed little sympathy for any potential financial impact on unions who “have been on notice for years regarding this Court’s misgivings about Abood.”

The decision was not unanimous and Justice Kagan authored the dissent, which was critical of the majority’s failure to recognize the potential economic impact on unions when they are already not funded well enough to carry out their duties.

Public employers should consult with labor counsel to determine the best course of action regarding the impact of the Janus decision and how to handle fair share fees for non-union employees, which have now been found unlawful by the Supreme Court.

Sara Fagnilli is an attorney at Walter | Haverfield who focuses her practice on public law and litigation. She can be reached at sfagnilli@walterhav.com and at 216-928-2958.

 

 

When business is good, an acquisition lures the prospect of moving your company to the next level. But even veteran dealmakers sometimes overlook critical elements that can derail the best intentions. The following are five elements that should always be considered in an acquisition:

  1. Preparation – Whether the target company is a competitor or a complement, take a step back and ask if it truly fits the strategic direction of your business. Too many deals are made on emotion. Before talking numbers, develop a business plan that details how the new company will merge with yours. Be sure to list the pros and cons. Most importantly, make sure the executive team and your board of directors have a clear strategic acquisition plan in place on an annual basis.
  2. Communications – Seek outside perspectives and lean on advisors for constructive feedback. Good ones can be objective without internal blinders. This can include consultants, attorneys, accountants, IT, operations, sales managers, suppliers and strategic partners. Ensure that your executive team is fully engaged.
  3. Finance planning – Before determining the best way to finance the deal, develop a post-integration forecast and PandL. Cash and equity are not always the preferred method of payments. Debt from a multitude of sources can carry significant tax and cash-flow benefits. Leverage financial, legal and tax advisors for alternative strategies.
  4. Finding synergy – Before the deal closes, develop a six-month integration plan that uncovers as many efficiencies as possible. Too often, newly acquired companies trudge on in a perpetual silo without revealing the many opportunities they present. This includes shared resources, supply chain, operational efficiencies and workforce integration.
  5. Create an audit – A year after the deal, take a critical look at the entire process. This provides a second chance to uncover additional efficiencies that were not initially apparent. It also identifies critical lessons and the ability to improve the process during your next deal. Done well, there will be a next deal.

Ted Motheral is a partner with Walter ǀ Haverfield’s Corporate Transactions group. He be reached at tmotheral@walterhav.com or at 216.928.2967.

 

 

Ben Chojnacki, an attorney who focuses his practice on public law, sports law and litigation, is a 2018 graduate of the Cleveland Bridge Builders. Chojnacki is the third Walter | Haverfield attorney to complete the 10-month long program, which teaches participants how to become effective leaders and create meaningful change around a civic issue impacting Northeast Ohio.

Chojnacki is one of 59 graduates in this year’s class. Others include individuals from the non-profit, public and private sectors. All participants were required to go through a thorough application and vetting process.

“Bridge Builders provided the perfect opportunity for me to give back to the community and develop sustainable, long-term relationships with like-minded professionals,” said Chojnacki, who currently serves as the assistant law director for the village of Cuyahoga Heights. “It also allowed me to get back to doing what I love – volunteering.”

As part of the program, participants applied their skills to assist a local community organization in boosting its strategic efforts and overall effectiveness. Those organizations included the Positive Coaching Alliance, International Women’s Air and Space Museum, the Cleveland Metropolitan Bar Association and Signature Health, among others.

“I learned a lot about the challenges that non-profits and social service organizations face in achieving long-term success in the civic realm,” added Chojnacki, who worked with Signature Health, an opioid addition and behavioral healthcare services provider in Northeast Ohio. “I also became more aware of the strategies successful civic organizations have employed to ensure they have a long-lasting impact on Northeast Ohio.”

Emily O'Connor

John Neal

 

1. Check the city’s zoning code
When you are selecting the location of your new restaurant, make sure to check the local zoning code to ensure that your restaurant will be permitted to operate

in that location. Take a look at that code to not only confirm that your use is allowed, but that there are no other requirements you need to meet. That may include a required number of parking spaces or signage restrictions.

2. Obtain a food service operation license
This will be one of the first steps you take in opening your restaurant. In Ohio, you will first need to submit your application along with your floor plans and equipment list. Make sure to look at the checklist provided in your application to ensure you are meeting all of the requirements. Once your plans have been approved, you can apply for your food service operation license. You will need to schedule an inspection with the local health department inspector before the license can be issued. This can be one of the most time-consuming tasks, so budget significant time.

3. Obtain a liquor permit
If you would like to serve alcohol at your restaurant, then you will need to obtain a liquor permit. Cities and towns have quotas on how many liquor permits can be issued in the area. If there is not one available, you will need to obtain one from another locale and file a transfer application. The process can take time so you will want to look into applying for a liquor permit as soon as you have your lease, and sometimes even before. The liquor permit does not issue until after a final inspection, which will occur right before the restaurant opens. So, the timing can be stressful. It is important to start the process as soon as possible.

4. Are you looking to have an outdoor patio?
If you are looking to provide an outdoor patio for your guests, you will likely need to get a permit from the city or town where your restaurant is located. They may require that you sign a waiver and provide copies of your food service operation license, liquor permit and certificate of liability insurance. Your liquor permit will need to include the patio area. It can take a couple months to obtain approval for the patio so make sure to look into your city or town’s requirements early on and plan accordingly.

5. Are you looking to provide music or some form of entertainment at your restaurant?
If so, you may need another license from the city or town where your restaurant will be located. For instance, in the city of Cleveland, you need to obtain a Consolidated Entertainment and Amusement Device License if you want to have any of the following activities at your restaurant: billiard room, bowling alley, dance hall, music, coin-operated amusement devices or roller rink. While obtaining the license can be fairly straightforward, you will want to budget enough time to obtain the city or town’s approval.

Emily O. Vaisa is an attorney in the liquor control and real estate practice groups. She assists clients in obtaining new liquor permits with the Ohio Division of Liquor Control and represents liquor permit holders in proceedings before the Ohio Liquor Commission. Emily can be reached at evaisa@walterhav.com or at 216-928-2909.

John Neal is head of the liquor control group at Walter | Haverfield. He focuses his practice on state and federal liquor permit licensing as well as the licensing of Ohio’s new medical marijuana industry. He can be reached at jneal@walterhav.com or at 216-619-7866.

 

Christina Peer

The U.S. Department of Education’s Office for Civil Rights (OCR) has launched an initiative to make more websites and online programs accessible for individuals with disabilities. OCR will offer technical assistance and design suggestions via a series of webinars to schools, districts, state education agencies, libraries, colleges and universities. The webinars are intended for IT professionals. Vendors are encouraged to attend as well.

The first webinar will be offered on the following dates:

Webinar I:

May 29, 2018 at 1 pm EDT

June 5, 2018 at 1 pm EDT

June 12, 2018 at 1 pm EDT

If you interested in participating in any of the webinars, email the OCR here. In the email, include your name, preferred webinar date, contact information and whether you have accessibility needs.

OCR is also available to host personalized interactive webinars with individual recipients. If you are interested in a personalized session, email the OCR here.

Dates for future webinars will be posted. Any additional information can be found on OCR’s website.

Christina Peer is chair of the education group at Walter ǀ Haverfield. She routinely counsels school districts on state and federal laws related to students with disabilities. She also provides counsel to boards of education on student discipline, collective bargaining agreements, First Amendment, public records requests and social media issues.andnbsp; Christina can be reached at cpeer@walterhav.com or at 216-928-2918.

 

Prior to introducing a brand name in the marketplace, it is important to make an informed business decision by doing your due diligence. Any lack thereof could cost time and money, and risk embarrassment.

For example, in April 2017, Starbucks® introduced a color and flavor-changing blended beverage with the name “Unicorn Frappuccino.” This colorful beverage was an instant “instagramable” success that was featured in thousands of postings. However, this widespread social media presence of the Starbucks® Unicorn Frappuccino brought some unwelcomed attention along with it in the form of an infringement lawsuit.

Montauk Juice Factory, Inc. and The End Brooklyn (plaintiffs) filed suit against Starbucks® alleging that by selling Unicorn Frappuccino beverages, Starbucks® infringed on their colorful beverage known as “Unicorn Latte.”

The plaintiffs provided evidence that in December 2016, the Unicorn Latte had begun appearing in traditional media outlets, coupled with advertising efforts and social media exposure. In an attempt to federally protect their intellectual property rights, the plaintiffs applied to register the name UNICORN LATTE with the United States Patent and Trademark Office (USPTO) in January 2017. After its filing, this pending trademark application (now, U.S. Registered mark 5,436,103) was publicly accessible on the USPTO’s database.

Nevertheless, Starbucks® launched its Unicorn Frappuccino, albeit as a limited release, in April 2017. Starbucks® commented that the Unicorn Frappuccino was inspired by “the fun, spirited and colorful unicorn-themed food and drinks that had been trending on social media.” However, this Unicorn Frappuccino, much like the plaintiffs’ Unicorn Latte, was brightly colored and prominently featured blue and pink colors with a color-powdered topping. It also had the word “unicorn” in its name. The plaintiffs and Starbucks® have since reached a settlement.

But, this scenario raises the question of whether Starbucks® conducted a sufficient amount of due diligence prior to the launch of its Unicorn Frappuccino? Perhaps, Starbucks® knew of the Unicorn Latte trademark application and decided to accept any ensuing risk that followed the launch of an allegedly similar product?

Most often, this type of cost/benefit analysis is purely a business decision. However, it is much more prudent to make an informed business decision by conducting a knock-out or clearance search before selecting a brand, product or company name.

Therefore, it is worthwhile to contact an experienced trademark attorney to assist in making these types of informed business decisions before selecting a brand, product or company name. Walter | Haverfield regularly counsels clients worldwide on these exact types of decisions.


Kevin Soucek is an attorney at Walter | Haverfield who focuses his practice on intellectual property. He can be reached at ksoucek@walterhav.com or at 216-619-7885.

Economic development is often associated with TIFs, CRAs, JEDDs, and the alphabet soup of other acronyms used by local governments to convince developers to choose their community as the site for new development. But establishing intuitive, user-friendly land use and development policies and procedures is an equally important and often overlooked method of attracting and retaining development. Local governments should consider adopting some of the following best practices:

Well-trained planning and zoning staff and planning commission

Planning and zoning staff may not always have the training in land use planning and zoning to effectively and efficiently serve as the community’s point person when a developer knocks on the door. Also, planning commissions are often made up of civic-minded residents, but those citizens rarely have backgrounds in real estate, law, or another planning-related profession. Planning staff, planning commissions and other boards and commissions should be well-trained and able to efficiently guide the developer through the approval process.

User-friendly forms

Often, communities utilize a single form for variances, rezoning, building permits, and a variety of other purposes. Although building and planning staff may understand the form, forms should be intuitive to developers and property owners.

Zoning code provisions that provide a degree of certainty

It is no secret that developers like certainty. Developers do not like when they cannot determine whether the plan would be permitted under a zoning code and other ordinances, or when the process required to obtain approval is unclear. If that happens, then developers may choose an alternative, lower risk community that provides more certainty in their ordinances.

Jessica Trivisonno is an attorney in the Public Law group at Walter | Haverfield. She can be reached at jtrivisonno@walterhav.com or at 216-619-7870.

For more information on policies and procedures that encourage development, Jessica Trivisonno and her colleague, Todd Hunt are presenting “Encouraging Economic Development Through Planning” at the Northeast Ohio Planning and Zoning Workshop on June 8, 2018 in Conneaut, Ohio. The workshop is open and sessions are designed for local officials, planning commission and board of zoning appeals members, community development professionals, professional planners, attorneys, architects and other interested citizens. Register here.

 

Rina Russo 

The U.S. Supreme Court will not review an appellate court decision which held that a leave of absence from work lasting several months is not a reasonable accommodation under the Americans with Disabilities Act (ADA). That decision came from the Seventh Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin.

The plaintiff in Severson v. Heartland Woodcraft, Inc. requested that the Supreme Court decide whether there is a per se rule that a finite leave of absence of more than one month is not a reasonable accommodation under the ADA. However, the court declined to hear the case and express its opinion on the issue. Various other circuit courts of appeals have found the opposite – that a finite leave of absence can be a reasonable accommodation under the ADA.

In Severson, the plaintiff took a 12-week leave under the Family and Medical Leave Act (FMLA) to deal with serious back pain. At the end of the 12-week FMLA period, the plaintiff had back surgery, and told his employer that he could not work for an additional two to three months while he recovered from surgery. The employer denied that request and terminated the plaintiff’s employment. The plaintiff brought suit against his employer, alleging that it violated the ADA by failing to grant the additional leave as a reasonable accommodation. The trial court granted the employer’s motion for summary judgment, and the Seventh Circuit affirmed that ruling. In doing so, the Seventh Circuit reasoned that an extended medical leave would not assist him in performing his job but would actually keep him from working. The Seventh Circuit found that while the ADA is not a medical leave statute, it may still require brief periods of medical leave.

Without the Supreme Court’s input, employers will continue to wrestle with how to evaluate whether an extended leave of absence is a reasonable accommodation under the ADA. Outside the Seventh Circuit, multiple courts of appeals and the Equal Employment Opportunity Commission (EEOC) have held that a finite leave of absence can be a reasonable accommodation under the ADA. Further, the EEOC has even indicated that placing a limit on the amount of leave an employee is entitled to is a violation of the ADA. Without clear guidance on the issue, employers should always engage in the ADA interactive process with employees to evaluate possible reasonable accommodations.

Rina Russo is an attorney with Walter | Haverfield’s Labor and Employment Services practice group. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

 

 

Committed to its mission of offering superior service to a wide range of clients, Walter | Haverfield has hired Jessica Bradburn Loucks to its Litigation team.

Loucks is a passionate, young attorney with experience in various phases of complex civil litigation. Her background includes in-depth involvement on a defense team for a Fortune 500 global science company. She worked extensively on all aspects of the multidistrict litigation consisting of numerous, novel claims of personal injury and wrongful death. As part of that team, she helped implement a process to timely remove and transfer more than 2,000 complaints from state court into federal court.

“Jessica’s skills as well as her dedication to the job truly impress us,” said Ralph Cascarilla, head of Walter | Haverfield’s Litigation team. “We are honored to have her on our team.”

Loucks previously served as a legal extern with the Cleveland Metropolitan Bar Association. There, she was the driving force behind the development and creation of a pilot program offering legal services in the Cleveland Metropolitan School District. She also served as a member of the Police Reform Practicum, working with the Cleveland Community Police Commission to improve police-community relations.

A graduate of the Cleveland-Marshall College of Law, Loucks is a native of Rochester, NY and resides in Rocky River with her family. She earned her undergraduate degree from Bowling Green State University.

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public entities and high net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Our track record has allowed us to sustain year-after-year growth. Walter | Haverfield has more than doubled in the past decade to become one of Cleveland’s top ten law firms. Today, our team of nearly 80 attorneys is focused primarily in the areas of corporate transactions, real estate, intellectual property, labor and employment, tax and wealth management, liquor control law, litigation, public law and education.

With the prevalence of smartphones and social media, school districts are growing increasingly wary over the ability of students to record what happens in school. And some courts are sharing that same concern, as demonstrated in a recent decision. It’s a decision that involves a novel attempt by parents to obtain a recording device as an accommodation under the Americans with Disabilities Act (ADA) to record everything said throughout the school day.

In Pollack v. Regional School Unit 75, No. 17-1700 (1st Cir. Mar. 26, 2018), parents in Maine gave their son an audio recording device to carry while at school. Their son is autistic and has a severe and rare neurological syndrome which limits his ability to process language and prevents him from speaking. The parents argued that they needed to record everything that was said in their child’s presence so they can learn about his experiences at school, and in turn, advocate for him when necessary. After all, unlike other students, their son was unable to answer the question that many parents ask their children every day: What happened at school today?

After the school district refused the request, the parents filed suit in federal court alleging a violation of the ADA for failure to provide a reasonable accommodation. The primary issue: whether the school district denied the student “the benefits of [its] services, programs, or activities” or otherwise discriminated against him when it rejected the parents’ request to equip their son with a recording device. The lower court ruled that the district did not violate the student’s rights under the ADA by denying his parents’ request for the device.

The legal decision involved extensive procedural analysis, including an Individuals with Disabilities Education Act (IDEA) component. (The administrative hearing officer found that the school district did provide the student with a free appropriate public education (FAPE) and the recording device provided the student with no demonstrable benefit.) Ultimately, however, the appeals court agreed with the lower court.

The court observed that the student had over 12 years in school without a recording device, yet he “has been happy, has loved school, and has made continuous and significant progress.” In addition, district staff testified that the device would not support the student’s education. And it may actually hinder it by increasing his isolation after making staff and peers uncomfortable. But most telling was the parent’s inability to answer the court’s question of “what exactly were the parents going to do with the 4 or 5 hours of recordings each evening?”

The court noted that one of the requirements of an ADA accommodation claim involves showing the “effectiveness” of the proposed accommodation. Specifically, does the proposed accommodation offer a benefit in the form of increased access to a public service? The court concluded the parents failed to show that the recording device would provide the student with a demonstrable benefit, and thus, the parents were unable to prove a necessary element of an ADA claim.

The ability to record is nothing new, but the means to go about it is more sophisticated than ever. Because Ohio is a “one-party consent” state, a student may not always need to ask permission to record. But if you are facing an attempt by parents, students or even employees to record conversations, legal counsel may be necessary to explain the nuances.

Peter Zawadski is an attorney at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

Substitute House Bill 478 (“Sub. H.B. 478”), which was passed on April, 11, amends Ohio’s law regarding small cell facilities in the right-of-way. Such facilities will be used to support 5G cell phone technology.andnbsp; We have prepared a detailed chart, comparing the existing provisions of Chapter 4939 (as amended by Senate Bill 331) and the provisions of Sub. H.B. 478.

Sub. H.B. 478 makes a number of noteworthy changes to the law, including the following:

  • Allows a municipality to adopt and apply reasonable, written design guidelines.
  • Increases the amount of time to review an application for installation of a new pole in the right-of-way from 90 days to 120 days.
  • Provides that a municipality may determine the application fee (up to $250) and annual rental fee (up to $200) in its sole discretion, and also allows a municipality to adjust its fees for inflation.andnbsp;andnbsp;andnbsp;andnbsp;
  • Limits the number of applications that can be submitted together
    (consolidated) to 30 and requires that consolidated applications be
    substantially similar to one another.
  • Lowers the maximum permitted height of new poles from 50 feet down to 40 feet, generally; and allows a restriction as low as 35 feet when there are other height restrictions in the area. But note that in the absence of local regulation, height limits can be exceeded.
  • Requires that operators timely act when a permit is issued and allows a municipality to require that an operator remove abandoned facilities.

The legislation is awaiting Governor Kasich’s signature and will go into effect 90 days after he signs it.

Municipalities should start preparing small cell legislation and design guidelines as soon as possible so that they are ready when the new law takes effect. Legislation should address issues including application requirements and procedures, fees, height limitations for new wireless support structures, and specific regulations regarding the design of small cell facilities. Small cell design guidelines should be tailored to the needs of the community.

Municipalities with a comprehensive right-of-way ordinance should review the ordinance in light of the new law. Communities should also consider creating application forms for small cells as well as training personnel on evaluating small cell applications in compliance with the new law.

Your community can simplify the process of addressing small cells by developing appropriate legislation, forms and guidelines before you receive a small cell application under the new law. Taking a proactive approach will protect your community and diminish the burden on your building, planning, service, engineering and legal personnel when applications are received.

Bill Hanna is head of the Public Law group at Walter | Haverfield. He can be reached at whanna@walterhav.com or at 216-928-2940.

 

 

There has been a great deal of ‘buzz’ lately over the Qualified Business Income Deduction (QBID). The QBID was recently made available to pass through business owners under the Tax Cuts and Jobs Act that the President signed into law in 2017. Under new Internal Revenue Code Section 199A, pass through business owners are eligible to take up to a 20% deduction against their income from a qualified business. However, there is a risk that if the business is not compliant or late in filing its W-2 wage statements, its owners could lose their entire deduction for the year. While reasonable cause penalty abatement is available for late or incorrectly filed W-2 wage statements, there is no such exception in new Section 199A. This makes it an all or nothing proposition to qualify to take the QBID.

Tax practitioners and business owners have begun reviewing their organizations to determine the most advantageous structure in the context of this new law. Depending on the field of the underlying business and the total income of the business owner, the 20% deduction may be reduced or eliminated entirely. This is where the W-2 wage statements come into play. If a business owner is not engaged in a specified service business(1), and his/her total adjusted income is greater than $415,000 for a married taxpayer or $207,500 for a single taxpayer (the threshold amount), then the 20% deduction is limited to the greater of: (a) 50% of W-2 wages or (b) 25% of W-2 wages plus 2.5% of certain capital assets held by the qualified business. This means that for higher income business owners, if the business has zero W-2 wages and no capital assets, then the QBID will be zero. A high-income business owner will want to structure his/her business to pay sufficient wages and/or hold capital assets that will qualify to take the QBID.

Many practitioners are even recommending that sole proprietors and partnerships with few or no employees convert to be taxed as S corporations in order to pay their owners W-2 wages and thus be eligible to take the QBID. The catch is that the wages paid to the employees of the qualified business must be “properly included in a return filed with the Social Security Administration on or before the 60th day after the due date (including extensions) for such return.”(2) This means that if the business’s W-2 statements are not filed correctly, or are filed more than 60 days late, the owners will not qualify for the QBID for the year the wages were paid, if their income is over the threshold amount.

This trap for the unwary could lead to dire consequences for business owners who are relying on the W-2 limitation to qualify them to take the QBID. Furthermore, this loss of the QBID is in addition to the stiff penalties that may be imposed for non-compliance and late filing of the W-2 wage statements.(3) Practitioners have been seeing more and more employers who have missed these filing deadlines and need assistance in requesting penalty abatements. Although reasonable cause penalty abatement is available for the failure to file and failure to deposit penalties, there is no relief available under Code Section 199A for business owners who mistakenly do not file the wage statements on time and need to qualify for the QBID using the W-2 limitation.

High-income pass through business owners should set up procedures with multiple safeguards to ensure they do not miss the W-2 wage statement filing deadline. And if they do, it’s important that it is corrected within 60 days of the due date. Business owners should set up internal procedures and also coordinate with their tax counsel to make sure they are in full compliance with this requirement for Code Section 199A.

Alexis Kim is an attorney at Walter | Haverfield who focuses her practice on federal, state and local tax planning as well as estate and succession planning. She can be reached at akim@walterhav.com or at 216-619-7859.

 

(1) Any business involving the performance of services in the fields of health, law, consulting, athletics, financial services, brokerage services, or any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees or owners, or which involves the performance of services that consist of investing and investment management.

(2) USC 199A(b)(4)(C).

(3) Failure to file and failure to deposit penalties are imposed on employers who do not timely file wage statements and/or pay the withheld taxes. See 26 USC 6651 and 6656.

 

The United States Supreme Court recently heard oral arguments in two cases that may significantly impact local government. One case pits First Amendment free speech rights against the right of a local legislative body to control its meetings. The second case challenges a rule established in 1977 requiring public employees to pay “fair share” union dues where an employee chooses not to join the union. Both arguments involved very active questioning by the justices and could result in changes in the law in late spring or early summer.

Free speech rights of audience members in public meetings

In Lozman v. City of Riviera Beach, the court is considering whether the arrest of a petitioner at a public meeting in Florida constitutes a retaliatory arrest in violation of his First Amendment rights. Fane Lozman stood before the Riviera Beach City Council during the public comment period of the meeting and began talking about public corruption in Palm Beach County. The council chair instructed Lozman not to address that topic, but Lozman continued. (Video can be seen here).

The chair then told Lozman to leave or be arrested, and when he did not leave, the chair ordered him to be arrested. Lozman was handcuffed and charged with disorderly conduct and resisting arrest. The charges were eventually dropped and Lozman filed suit claiming civil rights violations. A jury for the city and the United States Court of Appeals for the Eleventh Circuit upheld the verdict, finding the police had probable cause to arrest Lozman under the Florida statute. The Supreme Court agreed to hear the case, which is Lozman’s second case before the Supreme Court in five years against the city.

The United States Supreme Court will need to decide the line between a citizen’s right to exercise free speech and a government’s ability to maintain order in a public meeting. The question is — was there probable cause to believe Lozman was disturbing or about to disturb a public meeting, or alternatively, were the actions of the chair retaliatory?

Fair share union dues revisited

The United States Supreme Court also heard oral arguments in Janus v. AFSCME, which challenges a 1977 Supreme Court decision in Abood v. Detroit Board of Education. The Abood case upheld the requirement that public employees pay a portion of union dues known as “fair share” when the public employee chooses not to join the union. The court found in Abood that public employees who choose not to join the union still benefit from the negotiations conducted by the union. Mark Janus, a state employee in Illinois, chose not to join the union and has presented the question of fair share to the United States Supreme Court for reevaluation. Two years ago, the Supreme Court considered the issue of fair share in Friedrichs v. California Teachers Association. However, the sudden death of Justice Antonin Scalia a month after the oral argument resulted in a 4-4 decision, leaving the Abood decision in place. President Trump appointee Justice Neil Gorsuch may be the deciding vote. The financial implications of the decision could be significant.

Sara Fagnilli is an attorney at Walter | Haverfield who focuses her practice on public law and litigation. She can be reached at sfagnilli@walterhav.com and at 216-928-2958.

 

 

While there is no federal law expressly prohibiting sexual orientation and gender identity discrimination in employment, two federal appellate courts have recently expanded the rights of gay and transgender employees.

The Second Circuit Court of Appeals, which presides over New York, Connecticut and Vermont, ruled that employees are protected from discrimination on the basis of sexual orientation under Title VII of the Civil Rights Act of 1964. In Zarda v. Altitude Express, a gay skydiving instructor brought the case after he was fired for telling certain clients about his sexual orientation. The Second Circuit interpreted Title VII’s prohibition on sex discrimination to include sexual orientation discrimination because it is “motivated, at least in part, by sex and is thus a subset of sex discrimination.” The Second Circuit joins the Seventh Circuit Court of Appeals, which in 2017 also found that sexual orientation discrimination is prohibited under Title VII in the case of Hively v. Ivy Tech Community College. The Sixth Circuit Court of Appeals, which governs Ohio, Michigan, Kentucky and Tennessee, ruled the opposite way in 2016 in the case of Clemons v. City of Memphis, Tennessee. It found that sexual orientation discrimination is not protected under Title VII.

However, the Sixth Circuit recently ruled that employers may not discriminate against employees based on their transgender or transitioning status, even if the employer has sincere religious objections. In EEOC v. R.G., the Equal Employment Opportunity Commission (EEOC) filed a lawsuit under Title VII alleging that a funeral home unlawfully discriminated on the basis of sex by firing a transgender employee. That happened after she informed her employer that she would begin presenting herself consistent with her gender identity. At the trial court, the employer asserted a defense under the Religious Freedom Restoration Act (RFRA) based on the employee supervisor’s religious belief that gender transition violates “God’s commands.” The Sixth Circuit ruled that the employer failed to show that keeping the transgender employee employed was a substantial burden on religious exercise to qualify for protection under the RFRA. In doing so, the Sixth Circuit necessarily found that Title VII prohibits employers from discriminating against employees on the basis of gender identity.

While there has been no clear guidance from the United States Supreme Court on whether Title VII protects gay or transgender employees, employers should be cognizant of recent court rulings on these subjects. They should also check state and local laws on the subject. While Ohio does not currently have a state statute that prohibits discrimination based on sexual orientation or gender identity, there is legislation pending. House Bill 160, titled “The Ohio Fairness Act,” would protect individuals from employment and housing discrimination on the basis of sexual orientation and gender identity. Additionally, several local governments in Ohio, such as Cleveland, Akron, Columbus, Cincinnati and Toledo have passed legislation prohibiting sexual orientation and gender identity discrimination by employers within those cities.

Rina Russo is an attorney with Walter | Haverfield’s Labor and Employment Services practice group. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

 

 

A recent U.S. Supreme Court decision about cheerleading uniforms is likely to have a significant impact on the fashion industry, prompting more designers to apply for and enforce copyright of their work.

In Star Athletica, LLC v. Varsity Brands, Inc., the court ruled that merely decorative, and not functional, elements in a cheerleading uniform can be protected by copyright.

Varsity Brands, Inc., which designs and sells cheerleading uniforms, has more than 200 copyright registrations. Those registrations include designs of lines, chevrons and colorful shapes that the company uses on its uniforms. Varsity Brands sued Star Athletica, a competitor, for infringing on its copyrights to the five designs shown below. At issue was whether the designs on the uniforms served the useful function of identifying the uniforms as cheerleading uniforms (in which case they are not protectable). Or whether the designs are solely “graphic designs” that are capable of existing independently because “they could be incorporated onto the surface of different types of garments, or hung on the wall and framed as art.”
The Supreme Court’s decision in Star Athletica provided necessary clarification on the Copyright Act. It found that (1) the designs on the cheerleading uniform “can be identified as features having pictorial, graphic, or sculptural qualities” and (2) “if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art [under the Copyright Act].” The court further reasoned that “[i]maginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uniform itself.” Accordingly, the court found that the designs are eligible for copyright protection. Notably, the court did not decide whether the particular designs at issue were otherwise copyrightable (e.g., whether the designs were sufficiently original to be copyrightable).

It remains to be seen how the new test will be applied in courts. But, in the meantime, the decision provides motivation to seek copyright protection for design elements included in useful articles (such as clothing, lighting fixtures, furniture, etc.).

Maria Cedroni is an attorney with Walter | Haverfield and concentrates on intellectual property law. She can be reached at mcedroni@walterhav.com or at 216-619-7846.

Kevin MurphyIn an article published in Crain’s Cleveland Business, Walter | Haverfield partner Kevin Murphy predicted that Ohio’s medical marijuana program, which faces many challenges, may not be fully functional for 12-18 months.

 

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 mpearlmutter@walterhav.com or at 216-619-7861.

 

 

Just when U.S. employers thought they could rely on a tighter, more favorable test for the determination of joint employer liability, the National Labor Relations Board’s joint employer saga lingers on – for now.

In December 2017, the NLRB reversed its prior Browning-Ferris Industries joint employer rule. The old Browning-Ferris rule was perhaps the most controversial decision from the Obama era NLRB. It stood for the proposition that a business could be deemed a “joint employer” and share liability with other entities if that business had even the ability to exert indirect control over those other entities.

The recent reversal of Browning-Ferris came by way of Hy-Brand Industrial Contractors, Ltd. The NLRB’s Hy-Brand ruling in December nullified Browning-Ferris and restored a standard whereby companies must have direct control over contractors, subsidiaries, and the like in order to be considered joint employers.

Employers across the country rejoiced, until a curveball was thrown late last month. On Feb. 26, the NLRB unanimously vacated its decision in Hy-Brand in response to a report from the NLRB’s inspector general (IG). The IG indicated that recently-appointed NLRB board member Bill Emanuel should not have participated in the case. It also concluded that Emanuel should have recused himself from Hy-Brand because Emanuel’s prior law firm represented Browning-Ferris’s contractor in the case before the board. The IG went on to note that Hy-Brand was essentially a continuation of the deliberations that took place in Browning-Ferris.

While the Obama-board joint employer rule may have achieved a reprieve for now, it is highly likely that another case similar to Hy-Brand will emerge which will result in a “clean” reversal of the Browning-Ferris standard. When and how that will occur is far from settled, but it is likely that the current NLRB has its sights set on abrogating the hot-button Browning-Ferris rule. Until then, Browning-Ferris is still the law of the land and employers must take notice to avoid joint employer liability.

Max Rieker is an attorney at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.

 

 

There are many nuances and specific factors that the U.S. Patent and Trademark Office (USPTO) considers when deciding if a trademark (which indicates the source of the goods or services) is a candidate for registration. Before you invest the time and money into your application, read the following:

Trademark applications can be refused for registration on various grounds, establishing that the mark does not function as a trademark. These grounds include trade names, functionality, ornamentation, informational matter, descriptiveness, color marks and goods in trade, amongst others.

Trade Name:

A trade name is often the name of a business or a company. The term, trade name means any name used by a person to identify his/her business or location. Whether a mark serves solely as a trade name rather than a trademark requires consideration of the way the mark is used, which is established upon review of the specimen (such as a label) submitted with the application by the USPTO.

Trade Dress:

Trade dress means the appearance or design of a product or its packaging. Trade dress can include features such as the size, shape, color or combinations of color, texture and graphics. Additionally, in some instances, trade dress can even include color, flavor, sound and odor. When a trademark application is filed, the examining attorney at the USPTO separately considers two substantive issues, namely (1) functionality and (2) distinctiveness.

Any trade dress which is functional cannot serve as a trademark. That is, if the trade dress is essential to the use or purpose of the article, or if it affects the cost or quality of the article, it is considered to be functional and is non-registerable. For example, the color yellow to denote a specific source of lawn equipment may function as trade dress and therefore be registerable. On the other hand, the color yellow for traffic signals or signage is essential to the functionality of the goods (e.g. alerts traffic to yield) and therefore will most likely not be registerable.

Functional trademarks cannot be registered due to the distinction between patent law and trademark law. Utilitarian products can be protected through utility patents that have a designated life, rather than through trademark registrations which could be unlimited in their life. Upon expiration of a utility patent, the invention enters the public domain.

andnbsp; The examining attorney at the USPTO must review not only the content of the application but must also conduct independent research to determine if the mark is functional. The applicant then has the opportunity to rebut the examiner’s findings.

To determine whether a trademark is functional, the following factors are examined:

andnbsp;andnbsp;andnbsp; (1) The existence of a utility patent on the product

andnbsp;andnbsp;andnbsp; (2) Advertising showing utilitarian advantages of the trademark if it is a design

andnbsp;andnbsp;andnbsp; (3) Facts relating to alternative designs

andnbsp;andnbsp;andnbsp; (4) Facts indicating whether the design results from a relatively simple or inexpensive method of manufacture

While utility patents for the product are strong evidence that a trademark is functional, design patents indicate that the trademark is not functional. Aesthetic functionality relates not only to product performance, but rather to competitive advantages. For example, a black outboard motor was not registrable because it could be coordinated with a variety of boat colors.

Peter Hochberg is a partner in the Intellectual Property group at Walter | Haverfield. Peter can be reached at dphochberg@walterhav.com or at 216-928-2903.

 

 

Alexis Kim, an associate in the Tax and Wealth Management group at Walter | Haverfield, is one of 27 graduates of the OnBoard Cleveland class of 2018. OnBoard Cleveland, a program of the Cleveland Leadership Center, helps early-career professionals make a difference in their community and their workplace.

“OnBoard Cleveland gave me the guidance to make tangible connections to new non-profits,” said Kim, who focuses her work on tax-exempt organizations. “Not only is that a great skill as I grow my practice, but I’m also eager for more opportunities to volunteer.”

Kim currently volunteers for the Cleveland Metropolitan Bar Association and Legal Aid at the West Side Catholic Center in Ohio City, helping local homeless women with legal issues.

OnBoard Cleveland is a six-month program that includes a competitive application process. Participants start off by learning about critical community issues and collaborative leadership skills. They then learn how to utilize their individual strengths to become better connected to philanthropic and professional opportunities.

“Alexis came to Walter | Haverfield with a strong skillset in the legal tax field,” said Gary Zwick, chair of the firm’s Tax and Wealth Management group. “Her participation in this program only makes her that much stronger as an attorney and individual who has a passion for non-profit work. We are extremely proud of her accomplishments.”

Kim is the first Walter | Haverfield attorney to complete OnBoard Cleveland.

 

Tragedy. Loss. Sorrow. Debate. Passion. Protest.

The devastating school shooting at Marjory Stoneman Douglas High School in Parkland, Florida has spawned national (and often contentious) debates across the country. Students, school staff members, parents and community groups are front-and-center in this ongoing conversation and are voicing their concerns. As a result, school districts, post-Parkland, have witnessed a tidal wave of student and employee protests in and beyond the classroom. These protests vary in form, size and character. They range from local and national walkouts (such as National School Walkout Day and the March for Our Lives event), administrative office walk-ins, “die-ins,” marches, rallies and social media campaigns to school-structured debates, moments of silence, clothing or insignia support campaigns, and student listening sessions.

For districts, the rising tide of school protests poses complex legal considerations and potential legal risks. Of key importance is the omnipresent and often difficult-to-navigate tension between student free speech rights (including the right to protest, under the First Amendment to the U.S. Constitution) and the need for districts to maintain order and discipline in schools. Moreover, as teachers and other school employees have joined students in the growing protest movement (and, in certain cases, have even coerced student participation in school protests), districts are increasingly faced with the challenge of balancing the managerial right to oversee and regulate employee conduct with the First Amendment right of such employees to speak as private citizens on matters of public concern. Further complicating these legal issues is the explosive use of social media by students and staff to organize and promote protests as well as the effects that off-campus speech has on school grounds.

School protests present many complex legal questions. By way of example, school districts should be on the lookout for and seek assistance with how best to handle the following issues:

 

  • When and to what extent is a district permitted to regulate student and/or school employee protests?
  • Can the district discipline students who protest? If so, does the school’s ability to discipline students change when the protest is silent (as in the case of wearing colors or insignia in support of a cause) as opposed to one that is operationally disruptive (such as unscheduled walkouts, walk-ins or rallies)?
  • If the district restricts or allows only certain student perspectives to be voiced in debates, does the school run the risk of claims involving viewpoint discrimination in violation of the First Amendment?
  • Do students who participate in walkouts or leave class to protest pose truancy and other attendance concerns? If so, how should the school district address these attendance issues without violating students’ free speech rights?
  • Can employees promote, organize or participate in student protests, or does such conduct run the risk of coercing student speech?
  • Can school districts discipline students or employees for off-campus comments or regulate posts made on social media off school grounds that relate to the ongoing, post-Parkland debate?

 

While the answers to the above questions are largely driven by the facts of the situation, districts should keep in mind these general principles when looking to address student or employee conduct:

 

  • Because these issues implicate an individual’s First Amendment rights, districts must first consider whether the speech or conduct at issue addresses a matter of public concern.
  • For students, the district should consider whether the conduct is actually disruptive to the educational environment and, if so, to what degree. Districts should also consider whether there are any violations of the student code of conduct arising from the speech or conduct.
  • For employee conduct, districts should look to collective bargaining agreements and board policy to determine whether the conduct potentially violates any applicable provisions contained in those documents.
  • For speech and activities that occur on an employee or student’s personal time (e.g. off-campus conduct or social media), districts should consider whether the conduct actually impacts or disrupts the school environment.
  • If there is a potential violation of policy, districts should also consider whether that violation is enforceable in the specific situation, given the likely interplay of student or employee constitutional rights.

 

The Parkland school shooting is, above all else, an indescribable tragedy. Nonetheless, the resulting school protests present complicated legal questions that districts must be prepared to handle. School districts are therefore encouraged to contact their legal counsel if they are faced with these issues.

James McWeeney is an attorney at Walter | Haverfield who focuses his practice on education law. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

 

James McWeenyThe #MeToo movement has exposed rampant sexual harassment across the country in a wide range of industries. Yet, we’ve heard little about the movement in our schools, until recently.

While often underreported, statistics of student-to-student sexual harassment are troubling. According to research from the American Association of University Women, approximately half of students in grades seven to 12 reported experiencing some form of sexual harassment in the 2010-2011 school year. Likewise, the United States Department of Education’s Office for Civil Rights recently reported a substantial increase in the number of sexual violence-related complaints that it received from the elementary and secondary education levels. These reports of student-to-student sexual harassment are rapidly transferring the focus of #MeToo from Tinsel Town to the classroom.

Indeed, school-based sexual harassment internet hashtags are on the rise. And that helps give students the opportunity to voice claims of sexual harassment and violence against teachers and staff as well as peers. For example, stories of student-to-student sexual harassment are proliferating at a feverish rate under the #MeTooK12 hashtag, which was developed by Stop Sexual Assault in Schools, a non-profit organization that focuses on schools’ gender discrimination responsibilities pursuant to Title IX of the Education Amendments Act of 1972. Other groups, such as Sexuality Information and Education Council of the United States, created the #teachthem hashtag. #Teachthem advocates comprehensive reform of sex education programs in schools, with a particular focus on teaching consent. As a consequence of these trends, school districts need to understand #MeToo and be acutely aware of the obligations the movement places on them under the law.

Although not exhaustive, schools should be on the look-out for the following legal and policy considerations related to #MeToo in their districts:

  • How to respond to calls to change sex education programs, whether informally through parents, students, and/or community members and organizations or through formal government legislation, which focuses on teaching consent and healthy relationships
  • Obligations of school districts to investigate, report and remedy student-to-student sexual harassment and violence as well as distinguish bullying from sexual harassment and violence under district sexual harassment policies
  • Responsibilities under Title IX to address and remedy alleged violations of gender discrimination as well as allegations of sexual harassment and violence, whether student-to-student or staff-to-student
  • Student First Amendment free speech rights that call attention to #MeToo or #MeTooK12 as well as balancing these protected rights against the districts’ need to maintain discipline and order in school.

Above all else, #MeToo presents complicated legal questions for schools. Districts are therefore encouraged to contact their attorneys immediately if #MeToo or related sexual harassment issues arise in (and possibly beyond) their classrooms. Finally, while the focus of this alert has been on student sexual harassment issues, schools should also be mindful of their obligations to protect staff members against sexual harassment.

James McWeeney is an attorney at Walter | Haverfield who focuses his practice on education law. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

 

A recent federal circuit court decision clarifies that Ohio business owners have the right to protect their private business records from state inspection in the absence of a search warrant. That’s despite statutory provisions purporting to allow warrantless searches.

Liberty Coins LLC, et al., v. David Goodman et. al. (6th Cir. 2018) involved a constitutional challenge to four provisions of the Ohio Precious Metals Dealers Act. The act authorizes warrantless administrative searches of certain records and information kept by precious metals dealers (both licensed and unlicensed). Two precious metal dealers challenged the act on the grounds that it violated their right to be secure from unreasonable searches and seizures as protected by the Fourth Amendment.

The U.S. Court of Appeals for the Sixth Circuit reviewed the act and concluded that the portions of the act that were necessary to deterring criminal activity in the precious metals industry, and which were part of a predictable and guided regulatory presence, were constitutional. However, those provisions that broadly authorized the government to “investigate the businesses” of precious metals dealers violated the Fourth Amendment of the U.S. Constitution and were therefore unconstitutional.

Liberty Coins is instructive to local and state governments as well as private business owners and entities operating in any “closely regulated” industry. Laws authorizing warrantless searches in these industries must meet a three-part test in order to comply with the Fourth Amendment: (1) there must be a substantial government interest that informs the law; (2) inspections must be necessary to further the law; and (3) the law, in terms of certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. Laws that fail to meet any part of this test will be subject to constitutional challenge under the Fourth Amendment.

If the government is looking to review your business records without a warrant, or you are a government entity seeking to enhance its regulatory efforts in a particular industry, it is wise to consult with legal counsel to ensure compliance with the Fourth Amendment. If you have any questions about Liberty Coins or any other administrative or regulatory regimes, the public law attorneys at Walter | Haverfield are available to assist you.

Ben Chojnacki is an attorney at Walter | Haverfield who focuses his practice on public law, litigation and sports law. He can be reached at bchojnacki@walterhav.com or at 216-619-7850.

 

The numbers are ever-increasing: Facebook currently reports 2.01 billion users; LinkedIn has 500 million members; Twitter comes in at 330 million users; and YouTube reports approximately 5 billion views per day.

Social media is not going away, but instead becoming more prevalent every day. While there can be positive aspects to staff members’ use of social media, there is also a great potential for misuse of this medium – both in and out of the work place.

What can a school district do to combat employees’ potential misuse of it? Here are the top 10 tips for managing staff member use of social media:

  • Review and update (as needed) your district’s Acceptable Use Policy (“AUP”) to ensure the social media policy for staff members is as comprehensive as possible.
  • Ensure that your district is providing training opportunities for staff members detailing the parameters and restrictions within the AUP to allow for staff members to have a full understanding of the policy.
  • Document all training opportunities for staff members (including sign-in sheets, attendance records, signed policy acknowledgement forms, etc.).
  • Ensure that staff members are informed of and understand their obligations to comply with state and federal laws related to maintaining confidential information, which includes the potential dissemination of student information via social media.
  • Ensure that staff members are informed of and understand their professional obligations to ensure that social media and related technology may not be utilized to promote inappropriate communications with students.
  • Ensure that staff members are informed of and understand their mandatory reporting obligations carry over to social media platforms pursuant to statutory obligations and district policies (i.e. issues related to harassment, bullying, hazing, etc.).
  • Ensure that staff members are informed of and understand that their personal social media presence is entirely their responsibility – if they fail to utilize appropriate privacy settings and/or post improper content that is reported to the district, disciplinary consequences may follow.
  • Designate an in-house contact person for staff member questions about the AUP. That person will address questions, comments and concerns about the policy to ensure the district is providing a consistent message relative to all aspects of the policy.
  • Encourage staff member cooperation, not just compliance. If a staff member has a concern or question about the district’s AUP or content he/she has viewed on social media (relative to the district, a staff member/administrator or student), encourage a cooperative atmosphere of raising inquiries and reporting concerns.
  • Ensure that new employees have an opportunity to be fully apprised of your district’s AUP as soon as possible following their hire.

 


Sara Markouc is an attorney at Walter | Haverfield who focuses her practice on education law as well as labor and employment law. She can be reached at smarkouc@walterhav.com and at 216-928-2924.

 

 

The National Labor Relations Board’s recent noteworthy decision to reverse the joint-employer standard will likely impact a variety of industries and businesses nationwide.

That decision centers around the case of Hy-Brand Industrial Contractors, Ltd. On December 14, 2017, the NLRB ruled that two or more entities will be considered joint employers only if there is proof that one entity has actually exercised control over essential employment terms of another entity’s employees. The Hy-Brand standard also requires that this control be direct and immediate, rather than indirect or limited.

The NLRB’s ruling reverses the highly controversial Browning-Ferris standard. In 2015, the case of Browning-Ferris Industries stood the labor and employment world on its head by holding that a company, the company’s contractors and franchisees could all be lumped together and considered a single “joint employer” for purposes of the National Labor Relations Act.

This was true even if the company did not exert overt control over the terms and conditions of employment for a contractor’s or franchisee’s workers. Under Browning-Ferris, the NLRB could determine that a group of separate entities could be considered a joint employer if the primary company had even “indirect control,” or the ability to exert indirect control over the related companies. Why is this important? Under Browning-Ferris, the alleged wrongs of one company could be imputed to other separate companies if it was determined that even “indirect control” could have been exerted. Thus, joint liability could have been imposed upon all entities in a “joint employer” web.

The NLRB’s U-turn move with Hy-Brand is prompting labor and employment lawyers across the country to intently watch how future decisions will be impacted. The most notable case, which has been in active litigation before the NLRB for several years, deals with the fast food giant, McDonald’s, and the extent to which it exerts control over its franchisees. To date, the McDonald’s case has been one of the most costly and intensive cases in the history of the NLRB, including no less than 150 days of testimony. Observers are keenly aware that Hy-Brand may well affect this case and countless more to come.

Max Rieker is an attorney at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.

 

 

Patent applications worldwide have been on a steady rise in recent years, up by nearly eight percent in 2015, according to the World Intellectual Property Organization (WIPO). And here in the U.S., the number of applications grew by nearly two percent that same year. A majority of them come from large companies as independent inventors face a variety of challenges. However, if these challenges can be managed properly, the potential monetary return for independent inventors is worth the investment in time and money.

Before filing a patent, consider the following:

Cradle to grave patent costs:

The costs for filing a patent application, which include government filing fees and fees paid to a registered patent practitioner to prepare and file the application, can run into the thousands of dollars. All utility patents then undergo prosecution where the merits of a patent are often argued before the U.S. Patent and Trademark Office (USPTO). It’s basically a vetting process, which can also cost thousands of dollars. Then, after the patent is granted, it may be challenged before the USPTO or a federal court. The costs of litigation are so prohibitive that oftentimes cases are settled at no small expense. Plus, maintenance fees are due to the USPTO every few years after a patent is granted. Failure to pay them may result in a loss of patent protection. Early involvement by a registered patent practitioner can help you anticipate and/or mitigate some of these costs.

Disclosure to potential competitors:

Many inventors have a desire to sell an invention to a company that manufactures similar products. However, sole inventors may not always have patent (or patent pending) protection before presenting their idea to a manufacturer, and that leaves them vulnerable. The manufacturer may express disinterest, but subsequently file a patent based upon or related to the inventor’s idea. In such cases, the inventor’s remedies are limited. To avoid the problem in the first place, an inventor should present a non-disclosure agreement to the manufacturer as a pre-condition to presenting his/her idea. However, any recovery is often less than what an owner could receive from selling or licensing the rights to the patent or application. Plus, contesting inventorship before the USPTO or a federal court could prove costly, and the outcome of such a contest is uncertain. The more advisable course of action is to avoid a dispute in the first place by filing a patent application prior to any such meeting. Inventors should also consult with a patent attorney before any disclosure of the invention.

Novelty:

Filing a patent application without first determining if the invention is already on the market may be a waste of time and money. Therefore, it’s often advisable for a potential applicant to conduct a prior art search to gain a better sense of an invention’s patentability. A prior art search involves a review of the invention by a registered patent practitioner, an extensive review of prior art, and an honest assessment or estimation of whether the applicant’s invention is in fact new (novel). Depending on the circumstances and nature of the innovation, less exhaustive evaluations may also be performed.

Statutory Bar:

When a patent applicant discloses his/her invention by using, selling, advertising and/or writing about it in publications, it’s often considered known to the general public. Under the American Invents Act, these activities may bar an owner from seeking patent protection if more than a year has passed since the owner used or disclosed his/her invention.

The above points are provided as a landscape of the patent procurement system and not intended to dissuade inventors from protecting their intellectual property rights. Rather, because of the value of the monopoly they offer, patents are worth pursuing for those who have invented truly novel (and non-obvious) concepts and can afford to secure, maintain and enforce such protection. Knowing the landscape and potential pitfalls (including costs) can be invaluable in the patent procurement process. To determine if patent protection is right for you, consult the patent professionals at Walter | Haverfield.

DeMarcus Levy is an attorney at Walter | Haverfield who focuses his practice on intellectual property law. He can be reached at dlevy@walterhav.com or at 216-928-2945.

 

John NealAre you having difficulty finding a liquor permit to transfer in your city, village or township? It’s a common problem. Oftentimes, all of the permits are taken because the liquor permit quota in a particular area is maxed out.

However, there is another way to get a liquor permit into a municipality when all of the quota permits are taken and no special permit is available. Ohio has long had a way to transfer a permit from one community to another, and the process has recently been made easier. It is known as the “TREX.”

The Economic Development Transfer (“TREX”) is the transfer of a liquor permit into an economic development project. Spelled out in Ohio Revised Code §4303.29(B)(2)(b)(i), TREX is intended to help those areas of the state which have an over-issuance of permits by allowing transfers of permits from other areas of the state. Put differently, a liquor permit can be bought from a seller in one area of the state and transferred to the buyer’s area, regardless of municipal boundaries.

Of course, to break the quota rules in this fashion, the state requires that the municipality to where the permit will be transferred endorse the transfer in writing. (Both businesses seeking to obtain a permit through the TREX system and municipalities should be aware that even if the political subdivision signs the TREX form, it can still object to the transfer under O.R.C. §4303.26). The buyer is also required to demonstrate that the project is an economic development project.

According to O.R.C. §4303.29(B)(2)(b)(ii), the factors that may be used to determine whether the project is an economic development project include:

  • the amount of financial investment in the project
  • the number of jobs that will be created by the project
  • projected earnings
  • projected tax revenues for the political subdivisions in which the project will be located
  • architectural certification of the plans and the cost of the project

It is the buyer’s responsibility to locate and purchase the permit, and the Division of Liquor Control recommends that people consult with attorneys for that process. Experienced attorneys who handle Ohio liquor law matters can typically locate a permit for purchase in mere days.

Upon filing of the TREX application, the superintendent of the liquor control will determine if the existing or proposed business that is seeking a TREX qualifies as an economic development project. If so, the transfer will be approved and proceed.

A permit that has been “TREXed” can be subsequently transferred to a different owner at the same location. In addition, it can be transferred to the same owner or a different owner at another location, provided that new location meets the economic development project criteria.

John Neal is an attorney at Walter | Haverfield who focuses his practice on state and federal liquor permit licensing as well as the licensing of Ohio’s new medical marijuana industry. He can be reached at jneal@walterhav.com or at 216-619-7866.

 

In an about-face move, a federal court took a surprise stance in a recent education case (Crofts v. Issaquah School District), which may put teachers and administrators across the country at a disadvantage and give parents the upper hand.

The U.S. District Court for the Western Division of Washington state concluded that parents may be allowed to sue public school employees individually in cases that involve violations of the Individuals with Disabilities Education Act (IDEA). IDEA requires that students with a disability are provided a free, appropriate public education that allows them to receive meaningful educational benefit commensurate with their individual circumstances.

Prior to the court’s decision, a number of other district and appellate courts ruled otherwise, stating that individual defendants cannot be held personally liable in lawsuits that invoke the IDEA.

In the Crofts case, Layna Crofts and Jeremy Sanders are suing their daughter’s school district, claiming it violated the IDEA. They are also suing the superintendent as well as the district’s executive director for special services. Among other issues, Crofts and Sanders argued that the district did not properly test their daughter (who they say has dyslexia) in response to her suspected disability.

The superintendent and executive director disputed the plaintiffs’ move to sue them in their individual capacity, arguing that it is impermissible. The court, however, denied their motion, stating the absence of any legal precedent from the 9th Circuit. The 2007 9th Circuit case of Blanchard v. Morton School District raised the issue of individual liability, but the court did not rule on the issue.

Regardless of the 9th Circuit decisions, a majority of other circuit courts around the country have concluded that monetary relief of any kind for violating IDEA is not permissible. In most jurisdictions, the only relief allowed is from the school district in the form of compensatory education, tuition reimbursement, attorneys’ fees, reimbursement for an Independent Education Evaluation (IEE), and/or compliance with an order from a hearing officer or court.

As the Crofts case continues in district court, it’s still unclear whether the judge will definitively rule in the parents’ favor and allow them to sue the superintendent and the executive director. If that happens, the case could impact public school employees, parents and students in future IDEA cases in ways not previously anticipated. It must be noted, however, that this case and the judge’s ultimate decision are not binding law in Ohio.

Kathryn Perrico is an attorney in Walter | Haverfield’s Education Law group. She focuses on special education law, school law and labor and employment. Kathryn can be reached at kperrico@walterhav.com or at 216-928-2948.

 

 

In response to the recent wave of sexual harassment allegations and the #MeToo movement, the 2017 Tax Cuts and Jobs Act includes a provision some call the “Harvey Weinstein tax.” Specifically, the law amends the Internal Revenue Code to prohibit a business from deducting the costs of a settlement payment (including attorneys’ fees) for a sexual harassment claim, if the settlement agreement contains a nondisclosure (confidentiality) provision. New Section 162(q) was added to the Internal Revenue Code and provides that no deduction shall be allowed for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorneys’ fees related to such a settlement or payment.” This provision applies to all such settlements entered into or paid after December 22, 2017, the date President Trump signed the bill into law.

Confidentiality and nondisclosure clauses are commonplace in settlement agreements, especially those involving workplace claims. The new law was motivated by the belief that such nondisclosure provisions played a significant role in allowing alleged harassers to stay in their jobs without scrutiny and continue to harass others. Now, with the law in place, employers have to choose between taking the tax deduction or allowing employees to speak publicly about embarrassing allegations, which may spur additional claims of sexual harassment from other employees. This law may also result in more costly and complicated settlements for businesses unable to take the financially-advantageous deduction, which could discourage the settlement of lawsuits and other claims.

At this point, there is a lot of ambiguity regarding the breadth and overall effect of the new law. For example, it is common practice for a settlement agreement to allocate the settlement amount among several claims or injuries for tax purposes. It’s unclear on the face of the law how the deduction of any settlement claims and corresponding attorneys’ fees not associated with sexual harassment would be treated if there is a nondisclosure provision in the settlement agreement – i.e. is there a proration of the deduction, or does the existence of sexual harassment otherwise override normally deductible amounts? Additionally, a straight read of the new statute suggests that even the plaintiff would be precluded from deducting their attorneys’ fees if there is a nondisclosure provision, which would eliminate a valuable above-the-line deduction and likely complicate settlement discussions.

It is unknown if or when the Internal Revenue Service will issue regulations or guidance on the new provision, or if businesses will just have to wait to see how the courts or Internal Revenue Service interpret the new language in the months to come.

Rina Russo is an attorney with Walter | Haverfield’s Labor and Employment Services practice group. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

Lacie O’Daire is an attorney with Walter | Haverfield’s Tax and Wealth Management Services practice group. She can be reached at 216-928-2901 or at lodaire@walterhav.com.

 

 

When Ohio updated its truancy law in 2017, the move required schools to emphasize prevention over punishment. Lawmakers shifted the focus from court proceedings to intervention strategies in schools, hoping students will return to the classroom and face a better chance for academic success. In the process, the juvenile justice system can reduce its caseload and focus on more serious matters.

Districts are now prohibited from suspending and expelling

students solely on truancy. This includes enforcement of zero-tolerance policies. Instead, schools must utilize absence intervention strategies to assist habitually truant or excessively absent students. One strategy is the formation of an absence intervention team. These teams identify root causes, such as transportation, nutrition and family issues, then develop a corrective action plan for the student and family. According to the law, intervention teams should be formed based on the specific needs of each student. They should include at least two school representatives, one of whom is familiar with the student, as well as a parent or guardian. Several attempts should be made to engage both the student and parent in the intervention process.

The approach is straightforward, but students with disabilities pose a separate set of challenges. Some students might have legitimate reasons for missing class and still be considered excessively absent, such as those who are medically unable to attend. Ohio’s new truancy law provides no exemptions for disability-related absences. Schools must follow the required intervention procedures in all circumstances.

For students with disabilities, districts must consider the student’s disability when addressing absences. If an intervention team is utilized, it should attempt to determine if absences are disability related, and if so, consider alternative educational options such as home instruction or online learning opportunities. Districts should be careful not to assume that a student intentionally misses school without considering all of the information available – including information from medical and/or mental health providers, parents and feedback from teachers.

When addressing absences of students with disabilities, school districts must be cognizant of their obligation to provide a free, appropriate public education (FAPE) to the student – whether the student is eligible under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973. Districts must ensure that the services they are providing offer the student a FAPE. Teams must make individualized decisions and not utilize a “one size fits all” approach to serving students with disabilities who have chronic, disability-related attendance issues.

Because Ohio’s new truancy law does not include any exceptions for students with disabilities, schools must follow the new law without discriminating against students with disabilities. When contacting parents of excessively absent students with disabilities, schools should explain to parents that, although the student’s absences are disability-related, the district is obligated to provide attendance interventions to comply with Ohio law. Districts should also be careful to apply Ohio’s new truancy law in all situations of habitually truant or excessively absent students. This evenhanded approach complies with the law while also eliminating discriminatory decision-making practices.

All districts and community schools in Ohio should review their policies and determine if changes are needed to satisfy the new law.

Definitions and Guidelines

The term chronic truancy has been removed from Ohio law and should no longer be included in a district’s policies and procedures. This includes zero-tolerance policies.

Excessive absences occur with or without legitimate excuses. This is now defined by at least 38 hours per month or 65 hours within a school year. These limits trigger the district’s intervention plan for any student, including disability or medically-related absences. The district must notify parents in writing within seven days of the triggering absence.

A habitual truant student is absent without a legitimate excuse for at least 30 consecutive hours; 42 hours per month; or 72 hours in a school year. This triggers the formation of an absence intervention team within seven days of the triggering event, and the development of an action plan 14 days thereafter. The school must make three attempts to engage a parent or guardian in the process.

Christina Peer is the education chair of Walter ǀ Haverfield. She provides counsel to boards of education on student discipline, collective bargaining, employee grievances and employee evaluations, among other matters. Christina counsels on state and federal laws related to students with disabilities, and she routinely trains teachers and administrators on special education issues. For more information contact Christina at 216-928-2918 or at cpeer@walterhav.com.

James McWeeney is an attorney in Walter | Haverfield’s Education Law practice group. He advises clients on First Amendment issues specific to school districts, labor and employment matters, contract disputes, public record request compliance and policy drafting. James can be reached at 216-928-2959 or at jmcweeney@walterhav.com.

 

The 6th Circuit Court of Appeals has spoken: preemption under the Employee Retirement Income Security Act (ERISA) does not apply when a municipality is acting as a market participant. The 6th Circuit upheld certain bidding ordinances for municipal projects that favored companies providing health and pension benefits to employees.

On January 4, 2018, the 6th Circuit decided Allied Constr. Indus. v. City of Cincinnati, et al., Nos. 16-4248 and 4249. In Allied Const., a non-profit trade organization sued Cincinnati claiming ERISA preempted its bidding ordinances. ERISA regulates employee health care benefit and pension plans and preempts similar or conflicting state or local laws. See 29 U.S.C. §1144. But preemption only applies when a state or political subdivision acts as a regulator, meaning when it performs a role that is characteristically governmental rather than a role performed by private actors.

Indeed, the city contested ERISA preemption on the basis that it acted as a private actor when it adopted ordinances setting forth guidelines for selecting bidders. These guidelines included the following requirements: (1) bidders must certify whether they provide health and pension benefits to employees; (2) bidders must have an apprenticeship program; and (3) winning bidders must pay $.10 per hour, per worker into a pre-apprenticeship training fund managed by the city. The city argued these guidelines were not preempted by ERISA since they codified a “preference for bidders” and ensured employment of skilled contractors committed to the city’s “safety, quality, time and budgetary concerns.”

The 6th Circuit agreed, holding that the market participant doctrine applied to ERISA preemption challenges. It also affirmed that the challenged conduct must be proprietary, not regulatory, for the market participant doctrine to apply. Noting that the line between proprietary and regulatory is not always discernable, the court set forth two alternative avenues to becoming a market participant. First, a public entity is a market participant if it acts in its “own interest in the efficient procurement of needed goods and services.” Second, a government entity is a market participant if the challenged action addresses a specific proprietary problem rather than encourages a general policy.

The court found that the first avenue applied to the city’s bidding ordinances. It determined the city acted as a market participant because it acted in its own interests in adopting bidding ordinances that ensured safe, timely and high-quality projects. The court reasoned: “a municipality might reasonably conclude that a contractor who provides (employee) benefits is less likely to experience significant employee turnover, improving the stability and overall quality of a project.” The court also found that when the city adopted the apprenticeship requirements, it had “a strong proprietary interest in developing a skilled workforce for its many future projects.” Therefore, the court rejected the plaintiff’s ERISA preemption challenge.

Although the 6th Circuit has applied the market participant doctrine to preemption in other areas (e.g., preemption under the NLRB), it previously had not done so in the ERISA preemption context. In reaching its decision, the court followed the direction of the 9th Circuit Court of Appeals in Johnson v. Rancho Santiago Community College Dist., 623 F.3d 1011, (9th Cir.2010), which similarly held that the market participant doctrine applies to ERISA preemption challenges. And while the 6th Circuit’s decision might be appealed to U.S. Supreme Court, for now it is law.

The decision in Allied Const. provides municipalities with the ability to consider additional qualifications of a bidder in awarding public contracts. For example, a municipality may enact legislation similar to Cincinnati’s favoring bidders that provide health, pension, or other retirement benefits to employees. But before enacting such ordinances, a municipality should familiarize itself with Allied Const. and how the market participant doctrine applies to ERISA preemption challenges.

Brendan Healy is an attorney with Walter | Haverfield who concentrates on public law as well as labor and employment law. He can be reached at bhealy@walterhav.com or at 216-619-7851.

 

 

On December 14, 2017, the National Labor Relations Board overturned a controversial 13-year precedent and issued a major decision relating to the legality and enforceability of certain employee handbook rules for employers nationwide.

This decision is likely to have far-reaching impact on the employer – employee relationship. With this NLRB action, a major constraint on employers’ ability to promulgate work rules has been significantly rolled back.

In 2004, the NLRB created a test for deciding whether portions of employee handbooks were legal. In Lutheran Heritage Village-Livonia 343 NLRB 646 (2004), the NLRB held that if “employees would reasonably construe” that the language in a work rule restricted the employees from banding together for a collective purpose, then the handbook provision would not be enforceable. This “concerted activity” shield was true for both unionized and non-unionized workplaces.

The “Lutheran Heritage test” was used by the NLRB to strike down many employee handbook provisions over the past several years. Those provisions included rules which prohibited employees from criticizing their employers on social media and rules which prohibited making recordings in the workplace. Shockingly, Lutheran Heritage was even used in a 2016 case to strike down aspirational handbook language which called upon employees to “maintain a positive work environment.”

During that same period, a minority of NLRB members often issued stinging dissents related to these contentious decisions, citing too great of an emphasis on employees’ rights and too little attention to the legitimate needs of employers to manage their workplaces.

On December 14, a 3-2 majority of the NLRB overturned the Lutheran Heritage standard. The vote in The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTS Local 2001 was strictly along party lines. The Republican majority found the prior Lutheran Heritage test to be both complicated and onerous on employers.

Now, the NLRB standard for reviewing a challenged employee handbook provision will not be based on the “reasonably construed” language of Lutheran Heritage. Rather, the board will consider the “nature and extent” of the rule’s “potential impact” which may be adverse to employees’ rights under the National Labor Relations Act. Further, the NLRB will consider the “legitimate justifications associated” with the work rule. In other words, the legitimate need of the employer may now take precedence over employees’ right to act in a concerted manner, depending on the language of the work rule, the legitimacy of the employer’s need and the operative facts.

As a good end-of-year practice, and particularly in light of this major NLRB ruling, every employer should undertake the process of reviewing employee handbooks to determine what changes should be made going forward.

For any questions regarding the applicability of the new standard, please contact Max Rieker at 216-928-2972 or mrieker@walterhav.com.

 

Although liquor permits in Ohio are issued by the state, a municipality has the right to request a hearing on the renewal of any permit within its borders. It can do so by objecting to the permit’s renewal as provided in Ohio Revised Code §4303.271. All liquor permits in Ohio, for the sale of beer and wine for carry-out (“C” permits), and for the sale of beer, wine and spirituous liquor for on-site consumption (“D” permits), are issued by the Ohio Division of Liquor Control. Each political subdivision (municipality, township or county) is assigned a specific number of permits that can be issued within the boundaries of that subdivision. This number is known as a quota. The permit quota is based on the population of the political subdivision at the last census.

 

ANNUAL RENEWAL REQUIRED

All liquor permits must be renewed every year. The state is separated into three regions for liquor permit renewal purposes. Permits in the northeast region (which includes Cuyahoga and its local counties) renew on October 1 of each year. Permits in the central eastern region (which includes Franklin County) renew on February 1 each year. And permits in the western region renew on June 1 each year. Permit holders are required to file a renewal application and fee each year.

 

HOW TO OBJECT

The legislative authority of the political subdivision objects to the renewal of a permit within its boundaries by filing a separate resolution for each permit with the Division of Liquor Control. That resolution must specify the reasons for the objection. These objections must be filed at least 30 days prior to the expiration of the permit and must be accompanied by a statement by the chief legal officer of the political subdivision that the objection is based on substantial legal grounds within the meaning and intent of O.R.C. §4303.292. Examples of legal grounds include but are not limited to: the owner has been convicted of a crime that relates to his/her fitness to operate a liquor permit establishment; the building where the permit is located has been declared a nuisance or does not conform to the building, health or safety requirements of the municipality; or the permit premises will cause substantial interference with the public decency, sobriety, peace or good order of the neighborhood.


HEARING BEFORE THE DIVISION OF LIQUOR CONTROL

By objecting to the renewal of a permit, the legislative authority is requesting a hearing. It then must establish grounds upon which the renewal of the permit should be denied. The permit holder and the objecting legislative authority are parties to the hearing, which would be held in the county seat of the county in which the permit premise is located. These hearings are generally done via videoconferencing with a hearing officer from the Division of Liquor Control. The legislative authority must be represented by counsel. The Division of Liquor Control may deny the renewal of the permit for the reasons set forth in O.R.C. §4303.292.


FURTHER APPEALS

Either party that participated in a renewal objection hearing can appeal the decision to the Ohio Liquor Control Commission. The hearing before the commission takes place in Columbus. If the appeal was taken by the permit holder, the attorney general’s office represents the legislative authority (but the legislative authority’s attorney is required to attend the hearing). If the appeal is taken by the legislative authority, the attorney for the legislative authority presents the case to the commission.

Either party can then appeal to the Franklin County Court of Common Pleas and then to the Tenth District Court of Appeals. In theory, a party could appeal to the Ohio Supreme Court but because all liquor matters are now heard by the Tenth District Court of Appeals, there is never a conflict in the case law between courts. So it is very unlikely that the Supreme Court would take a case unless it is a novel issue.

When a municipality has a bar or carry-out that is a problem, and the municipality is notified of the renewal deadline for liquor permits within its boundaries, it is worth evaluating whether grounds exist to object to the renewal of the permit. If so, council should pass the necessary resolution, the chief legal officer should attach the required statement, and he/she should file this information with the Division of Liquor Control to start the objection process. Eventually, the municipality may be able to get rid of its punch palace.1

1 The municipality may also want to consider using ORC Chapter 3767 (known as Ohio’s “Padlock Law”) and have the local common pleas court declare the property as a nuisance.


Susan Bungard is an attorney with Walter | Haverfield’s Public Law group. She can be reached at 216.928.2917 or sbungard@walterhav.com.

 

 

The intellectual property you create is a vital asset. However, creating and maintaining a durable intellectual property portfolio can be costly. Many sophisticated entrepreneurs or business leaders forgo prioritizing protection of such intellectual property because it is often perceived as just another inessential expenditure, rather than a shrewd, strategic investment. Some overlook protecting their intellectual property because they are unsure about the ultimate profitability of their “protectable” ideas. Others are regrettably unmindful of the fact that some may attempt to copy or steal their intellectual property.

Whereas the age-old adage “the best defense is a strong offense” unequivocally applies to the field of intellectual property, it is critical to understand that intellectual property can be employed in both defensive and offensive situations. Therefore, investing a small sum to build up your intellectual property defense now will pay off in the long run, if you ever have to defend it. Plus, this investment will make your intellectual property more valuable.

Below are some examples of how to initiate protection of your intellectual property assets:

  • Educate yourself on the basics of copyrights, trademarks, trade secrets and patents.
  • Identify all of your registered and unregistered copyrights and trademarks, as well as any possible trade secrets.
  • Identify all of your patentable technology including products as well as business processes. With today’s first-to-file system, the sooner you file a patent application, the better – as such an application holds your place in line.
  • Ensure that any written contract or agreement (including employment and manufacturing agreements) thoroughly and explicitly protects (and defines ownership of) your intellectual property.
  • Contact Walter | Haverfield to learn about what means of protection may be available to protect your brand(s), product(s), know-how, original work(s), etc.

Properly protecting intellectual property is a valuable process; it is wise to undertake proactive measures to safeguard your intellectual property now to avoid costly defense later.

Kevin Soucek is an attorney at Walter | Haverfield who focuses his practice on intellectual property. He can be reached at ksoucek@walterhav.com or 216-619-7885.

 

As we approach the first anniversary of President Trump’s inauguration, there are some emerging takeaways as to his administration’s priorities with regards to labor and employment law. Here’s a quick rundown of what we can glean, one year later:

    • Show me your budget, and I’ll tell you what you value. The administration’s proposed budget for fiscal year 2018, released in late May, suggested a more limited role for federal regulators in the labor and employment space. For example, under the proposed Trump budget for FY18, the Department of Labor’s budget was slashed by about 20 percent. The National Labor Relations Board’s proposed budget was cut by six percent. The administration’s proposed FY18 budget also uniformly envisioned headcount cuts across agencies principally responsible for labor and employment law enforcement, including consolidation of certain functions. Put simply, less money and smaller staffs suggest a preference for more limited (or at least less activist) regulation. Many of these cuts have been rejected by Congress, but a president’s proposed budget reflects administration priorities. When Congress does get around to funding the government for FY18, enforcement funds will almost certainly be more limited.

 

 

 

    • Congress mulls its own changes. While Congress has largely focused on attempts to pass large pieces of the Trump administration’s agenda in other related policy areas (such as health care and tax reform), there are some limited labor and employment stirrings on Capitol Hill. Senator John Thune’s NEW GIG Act, which would clarify the test for independent contractor classification for tax purposes and provide limited safe harbor to employers who misclassify workers, was included in the initial version of the Senate tax bill. Senator Thune was named to the conference committee that will attempt to pass the final tax bill – so this proposal is worth following. The Save Local Business Act, which would clarify and limit the definition of joint employment under the Fair Labor Standards Act and the National Labor Relations Act, has passed the House and awaits consideration in the Senate. Also passed in the House and now awaiting Senate consideration is the Working Families Flexibility Act, which would allow comp time arrangements under the FLSA for private sector workers.

 

  • EEOC issues guidance on preventing workplace harassment. In late November, the Equal Employment Opportunity Commission published new informal guidance regarding workplace harassment, entitled “Promising Practices for Preventing Harassment.” A product of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (which was initiated during the Obama administration), this guidance outlines a comprehensive set of suggestions on harassment prevention. That includes the suggestion that employers re-consider training methods to include civility and bystander training. With workplace harassment now part of the national zeitgeist, a review of this informal guidance is warranted.

George Asimou is an attorney with Walter | Haverfield and concentrates on labor and employment law. He can be reached at gasimou@walterhav.com or 216-928-2899.

 

Walter | Haverfield is the recipient of two awards from the Cleveland chapter of the Public Relations Society of America (PRSA), which recognizes outstanding work in marketing communications each year. The firm’s education law attorneys received a gold Cleveland Rocks award for its podcast series titled, “Class Act: Updates in Education Law.” The organization also recognized the firm for its integrated communications efforts. Rocks awards are based on research, planning, execution and evaluation of public relations and communications projects and programs.

Miriam Pearlmutter is an attorney in the Education Law group at Walter | Haverfield and host of the firm’s podcast, “Class Act: Updates in Education Law.”

 

 

The Ohio History Connection (previously the Ohio Historical Society) has just released an updated suggested record retention schedule for school districts. The template for this schedule can be accessed here.

School districts are not required to adopt new record retention schedules simply because an update has been released. However, the updated suggested schedule is significantly more detailed than the previous guidance provided by the Ohio History Connection. This level of detail, and the effort to better align the names and categories of records with those generated by school districts, should prove helpful to districts.

School districts are encouraged to review their current record retention schedule as well as the updated schedule. According to the Ohio History Connection, the retention periods on the schedule are required by statute or have been determined by best practice. However, each school district’s local records commission should review the suggested retention periods carefully with legal counsel to determine whether any adjustments should be made. The suggested retention periods can be edited based on the administrative, fiscal, legal and historical value of the records as determined by the commission. Additionally, school districts should note that a new record retention schedule will not be in effect until it is adopted and signed by the commission as well as by a representative from the state archives and the Ohio Auditor of State’s office. Finally, school districts should review their board policies to ensure that the policy is in alignment with the record retention schedule adopted by the commission.

Any questions on this topic can be directed to Christina Peer at 216-928-2918 or cpeer@walterhav.com or any of the other attorneys in the Education Law group.

 

December 6, 2017 – Walter | Haverfield is pleased to announce that nine of its attorneys have been selected to the Ohio Super Lawyers list. An additional 11 attorneys have been selected to the Ohio Rising Stars list. The names of those honored are below.

Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. No more than 2.5 percent of lawyers in the state are recognized by the Ohio Rising Stars research team.

Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained peer recognition and professional achievement. The annual selections, for both Super Lawyers and Rising Stars, are made using a multiphase process that includes independent research, peer nominations and peer evaluations.

Our 2018 Ohio Super Lawyers Honorees: Our 2018 Ohio Rising Stars Honorees:
Ralph Cascarilla George Asimou
Darrell Clay Benjamin Chojnacki
Bonnie Finley Brendan Healy
Irene MacDougall Patrick Hruby
Crain Marvinney Joshua Hurtuk
Kevin Murphy Shelly LaSalvia
Charles Riehl Ted Motheral
John Waldeck, Jr. Jamie Price
Gary Zwick Rina Russo
andnbsp; Megan Zaidan
andnbsp; Peter Zawadski

 

It’s a hot topic that is the focus of many attorney commercials and frequently makes news headlines across the state. They’re called firefighter cancer claims, and they can have significant financial impact for victims, attorneys and employers.

Earlier this year, state legislators amended the Ohio workers’ compensation law to allow current and retired firefighters suffering from various cancers to collect compensation benefits under certain circumstances. But there are exceptions to the rule, and municipalities, villages, townships and other employers of paid or volunteer firefighters should understand how the amendment affects them.

To be eligible for benefits, a firefighter must have been:

  • Working hazardous duty for at least six years. Defined as “duty performed under circumstances in which an accident could result in serious injury or death.”
  • Exposed to a known carcinogen while on duty.
  • Diagnosed with cancer by an appropriate medical provider.
  • First diagnosed, first received treatment, or first quit working due to the cancer on or after April 6, 2017.


The following circumstances can lead to the denial of benefits:

  • The firefighter is 70 years old or older.
  • The firefighter has not worked in the profession for more than 20 years.
  • The firefighter used or was exposed to cigarettes, tobacco products, or other conditions that would increase his/her risk of cancer.
  • The firefighter was not exposed to known and specific carcinogens.
  • The firefighter developed cancer before becoming a firefighter.

If the employer disputes the firefighter’s claim, the firefighter must prove that being
exposed to cancer-causing agents while working hazardous duty as a firefighter caused the diagnosis of cancer. Yet, a cancer diagnosis is not enough to prove a work-related claim. The employer may seek to demonstrate that non-work-related factors caused the firefighter’s cancer thereby resulting in the denial of the claim.

Employers should be cautious and use due diligence before certifying a firefighter cancer claim. If you have questions regarding cancer claims, contact Walter | Haverfield to determine whether it is causally related to the firefighter’s exposure to known and specific carcinogens while working hazardous duty for at least six years.

Margaret O’Bryon is an attorney at Walter | Haverfield who concentrates on workers’ compensation law as well as public and employment law. She can be reached at 440-652-1173 or mobryon@walterhav.com.

 

Individuals and businesses have until February 15 to pay unreported or underreported tax liabilities and avoid penalties, reduce interest costs

Individuals and businesses that owe unreported or underreported tax liabilities as of May 1, 2017, have an opportunity to avoid all tax penalties and cut the interest they owe in half if they act by February 15, 2018. The special offer is part of the new tax amnesty program announced by the Ohio Department of Taxation in November. The program takes effect January 1, 2018, and only applies to tax liabilities that are unknown to the Department of Taxation.

Residents, as well as nonresidents of Ohio, are eligible as long as they have not already received a notice of assessment and are not currently under audit.

Types of taxes covered under the amnesty program include:

  • Individual income tax
  • School district income tax
  • Employer withholding tax
  • Employer withholding for school district income tax
  • Pass-through entity tax (primarily for out-of-state businesses)
  • Sales and use taxes
  • Commercial activity tax
  • Financial institutions tax
  • Tobacco and alcohol tax

In some cases, nonresidents and out-of-state businesses may not have been aware of their Ohio tax obligation. It’s important to note that most income, purchases or commercial transactions that originate in Ohio are subject to Ohio taxes. Such previously unknown liabilities are covered under the new amnesty program.

 

Following the seemingly endless accusations of sexual harassment in Hollywood, on Capitol Hill, and in corporate America, employers may wonder what they can do to get ahead of the next potential headline in 2018. While it may be impossible to eliminate all conceivable claims of harassment, employers can take some steps to help avoid liability by creating or strengthening anti-harassment programs.

First, employers should consider reviewing and updating current sexual harassment policies. In such policies, employers should clearly define what is considered harassment and indicate that it will not be tolerated. These policies should also provide a clear reporting mechanism for employees to report harassment. Employers should attempt to remove potential roadblocks to reporting, by providing several avenues to report harassment, including confidential reporting through a hotline or other means. Employers may also consider promulgating a description of the steps of an investigation when the employer is presented with a sexual harassment complaint.

Additionally, employers should make sure they have strong anti-retaliation policies for the reporting of sexual harassment claims. Having such a policy on the books will likely provide some employees the courage they need to come forward. Additionally, it is the law – retaliation against an employee for making a harassment complaint is a stand-alone violation of both federal and state civil rights laws. Once the policies are updated, employers should distribute the policies to their employees.

While Ohio maintains no law requiring employers to provide training to its employees on sexual harassment, the Ohio Civil Rights Commission’s administrative regulations [Ohio Adm. Code 4112-5-05(J)(6)] indicate that employers should take all necessary steps to prevent sexual harassment, including “raising the issue of, stating disapproval of, developing sanctions against and informing employees of their rights and how to raise the issue of sexual harassment.” Accordingly, employers should also consider implementing training programs for all employees. Managers and supervisors should be trained on what sexual harassment is, how to identify it, and how to handle specific complaints. They should also be trained to identify retaliation, even absent specific complaints. And with regards to rank and file employees, it’s important that they be trained on the definition of sexual harassment and the process in which to report harassment and retaliation in the organization.

Rina Russo is an associate with Walter | Haverfield’s Labor and Employment Services practice group.

 

It is with great sadness that we announce the passing of our longtime colleague and friend, Jim Mackey.

Jim, 67, died Wednesday, November 29, 2017.

“Jim’s contributions to our collective endeavors have been significant, and we will truly miss his spirit, tenacity and kindness,” said Ralph Cascarilla, Walter | Haverfield’s managing partner.

A partner in our Corporate Transactions and Tax and Wealth Management groups, Jim joined Walter | Haverfield in 2001. He was particularly experienced in helping entrepreneurs in business transactions. He was also well known for his skills as an estate planner for individuals and business owners, assisting them through the complex process of estate and gift taxes as well as property transfers.

In 2011, John Carroll University honored Jim as an alumni medal award recipient. It is the highest honor awarded annually by the alumni association for an individual’s accomplishments in his/her profession, personal life and community as well as his/her dedication to John Carroll University.

In 2008, the Ohio State Bar Association recognized Jim as an estate planning, trust and probate board certified specialist in an issue of its Ohio Lawyer magazine.

Outside of the office, Jim was an active volunteer and community leader. He served as president of John Carroll University’s National Alumni Association and was a member of the board of trustees and the Presidential Search Committee. He was also chairman of the university’s Tax Advisory and Planned Giving Counsel.

Prior to joining Walter | Haverfield, Jim worked for Chattman, Gaines and Stern, LPA for 25 years, where he served as a managing director and the firm’s chief financial officer.

Jim leaves behind a wife, three sons, a daughter and 11 grandchildren.

 

“Fair share” union fees may very well be on their way out in the public sector. On September 28, 2017, the United States Supreme Court agreed to accept the case of Janus v. American Federation of State, County, and Municipal Employees (AFSCME). This case revisits the constitutionality of fair share fees being imposed upon an employee as a condition of employment.

The issue goes back to the seminal 1977 Supreme Court case of Abood v. Detroit Board of Education. In Abood, the unanimous court held that it was lawful for members of a bargaining unit – but who were NOT voluntary members of the applicable labor union – to be assessed a union fee as a condition of employment. The theory in Abood was that it is unjust to require unions to represent a minority of non-paying “free riders” within a bargaining unit who would then reap the benefit of the union negotiating and enforcing their labor contract. By law, unions are required to represent all members of a bargaining unit, including the processing of grievances for those who have not signed union membership cards.

Since Abood, both public sentiment and the opinion of justices have shifted. Many Supreme Court observers predicted that mandatory fair share fees to unions would be abolished with the early 2016 decision in Friedrichs v. California Teachers Association. That decision challenged fair share fees head-on based on First Amendment grounds.

However, the unexpected death of Justice Antonin Scalia a month before the Friedrichs decision was released resulted in a 4-4 deadlock. Therefore, the lower court decision to allow fair share fees was permitted to stand. Half of the justices in Friedrichs would have abolished fair share fees on the grounds that mandating any dues payments equates to mandating a worker’s speech.

Today, laws in 22 states, including Ohio, permit mandatory fair share fee payments from all those covered by a collective bargaining agreement, but who have opted not to join the union. There are currently about 11 million union employees in these 22 states. The other 28 states have “right to work” laws, which expressly prohibit requiring workers to join or financially support a labor union, unless those workers do so of their own volition.

The case now before the Supreme Court involves Mark Janus who is a child support specialist employed by the state of Illinois. He and a small group of others filed suit two years ago based on the same free speech arguments brought forth in Friedrichs. Janus objected to being required to pay $44 per month to AFSCME, which covers approximately 35,000 other state workers.

Many now view Janus v. AFSCME as the final blow to the 40-year-old Abood precedent. It is unlikely that Justices Roberts, Thomas, Alito and Kennedy will have had a change of heart on the same issue in the span of a year. It is highly likely that Justice Neil Gorsuch is poised to be the fifth vote necessary to strike down Abood. The Janus decision is due to be released in summer of 2018.

The practical impact of the likely outcome in Janus may not be felt immediately in the workplace. It has been estimated that as many as 30% of union members will cease paying union dues if the requirement is abolished. Consequently, an abolishment of fair share fee payments will ultimately weaken their ability to conduct business.

Unions are keenly aware of this dynamic. They will likely seek alternatives to existing and upcoming collective bargaining agreements in the short term in an attempt to contractually preserve fair share fees for as long of a period as possible.

Any questions on this topic can be directed to Max Rieker at 216-928-2972 or mrieker@walterhav.com.

 

With campaigning complete, ballots cast, and votes provisionally tabulated, it is time for campaign committees of local candidates to take down the yard signs and complete their post-election campaign finance reports.

Generally, Ohio law requires the campaign committees for candidates whose name appeared on the ballot to file a post-election campaign finance report no later than the close of business on the thirty-eighth day (38) after the general election. R.C. 3517.10(A)(2). This year, that deadline is 4:00 p.m. on December 15, 2017. It is important to note that the report must be received by the board of elections in the county where the elected position was sought by the close of business on December 15. Otherwise, the post-election campaign finance report is late. See 3517.11(A)(2)(a).

Failure to timely file a post-election campaign finance report may result in a referral to the Ohio Elections Commission, and may expose the candidate and/or the treasurer of the campaign committee to monetary penalties.

The post-election campaign report must account for all campaign contributions and expenditures properly made from the close of business on the last day reflected in the previously filed campaign finance statement, through the period ending seven days before the filing of the post-election statement. R.C. 3517.10(A)(2). Accordingly, candidates and campaign committees should promptly review their books to ensure that all contributions and expenditures are accounted for, and conclude a (hopefully) successful campaign by filing their post-election campaign finance reports no later than 4:00 p.m. on December 15.

Benjamin Chojnacki is an attorney in our Public Law group. He can be reached at bchojnacki@walterhav.com and 216.619.7850.

 

 

It was the night of February 2, 2017 – a night that ended in tragedy for Tim Piazza. And it all started with alcohol at a Pennsylvania State University fraternity where Piazza was a pledge. Two days later, after prosecutors in the case say Piazza drank excessively at the fraternity during a hazing ritual, then tumbled down a flight of stairs, the sophomore engineering student died.

Hazing is at the core of Piazza’s case. It’s also the focus of similar cases at Louisiana State University and Florida State University, where two pledges have died this school year. In the Louisiana State case, eight fraternity brothers and two others face charges related to the death of 18-year-old Maxwell Gruver. Police say the suspects forced the Louisiana State freshman to drink himself to death.

And here in Ohio, hazing is why the Ohio State University terminated its band director three years ago. The former director sued, but later withdrew his case.

Hazing is defined as coercing another to do an act of initiation into an organization, which causes or creates a substantial risk of mental or physical harm to any person.

And statistics indicate that it may be more common than we think. According to the National Study of Student Hazing, 47% of high school students come to college already having experienced hazing. 55% of college students who participate in clubs, teams and organizations have witnessed the problem or become a victim.

Ohio is one of 44 states that has an anti-hazing law, which includes both civil and criminal statutes.

The state’s criminal statute states that no person may recklessly participate in hazing of another, and that no school administrator, teacher or employee may recklessly allow hazing to occur. Violation of the law is a fourth-degree misdemeanor, punishable by a jail term of up to 30 days and a fine of up to $250.

Ohio’s civil statute allows a victim to file suit against the perpetrators, the organization whose officials tolerated or authorized the hazing, or the officials themselves. The victim is permitted to seek damages for injury as well as mental and physical pain and suffering that results from the act.

While a school may be able to protect itself against any liability by showing that it actively enforced an anti-hazing policy at the time of the incident, a viable defense cannot be made that the plaintiff was negligent in the incident(s) or gave consent to be hazed.

It is highly recommended that boards of education review their anti-hazing policies to ensure that they are detailed enough to address incidents that happen to those who have been actively participating in an organization for some time and become a victim.

It is also important for school administrators to regularly train all teachers and staff on the definition of hazing, the respective state statutes and the district’s policies.

As for Piazza’s case, twelve fraternity brothers, along with the Beta Theta Pi fraternity chapter at Penn State, are now facing multiple charges, including hazing and furnishing alcohol to minors.

In response to the 19-year-old’s death, U.S. Rep. Marcia Fudge (D- OH) and Rep. Patrick Meehan (R-PA) introduced a bill earlier this year that would require universities to include acts of hazing in their annual crime reports required by federal law.

Kathy Perrico is a partner in Walter | Haverfield’s Education group.

 

Don’t miss a fast-paced, one-hour seminar given by Walter | Haverfield’s George Asimou titled “A year later…How the Trump administration has changed the LandE landscape.”

Asimou, an attorney in our Labor and Employment group, will speak at the Cleveland Society for Human Resource Management (SHRM) Legal Affairs Conference on December 1, 2017. The conference takes place at Baldwin Wallace University’s Strosacker Union.

Asimou, who represents public and private sector employers on a broad range of issues related to federal and state labor and employment laws, will address the following in his presentation:

    • Formal changes in workplace laws and regulation
    • Subtle shifts in enforcement priorities
    • Broader re-evaluation of the norms of working life in America
    • On-going re-balancing of federal and state regulatory power

 

For more information about the conference and to register, click here.

George can be reached at gasimou@walterhav.com or 216.928.2899

 

The Drone Integration Pilot Program will allow state and local governments to propose local rules permitting otherwise prohibited uses of unmanned aerial systems (UAS, more commonly known as “drones”) in their jurisdictions.

The program was established by a presidential memorandum and signed by President Trump on October 25, 2017. Two weeks prior, self-declared drone stakeholders including Amazon, FedEx and GoPro sent a letter to the president urging him to create such a program. Many American companies experiment with innovative drone technology overseas and the memorandum points to America’s outdated regulatory framework as the reason.

The program intends to encourage innovation by permitting state and local governments to determine which drone activities may occur within their specific jurisdictions. If the state or local government’s proposed operations are approved by the U.S. Department of Transportation (DOT), then the jurisdiction (which could be as large as an entire state) will become a “drone innovation zone.”

Activities that may be permitted in an innovation zone include flights over people as well as flights that take place at night. They also include utilizing a drone beyond the pilot’s visual line of sight, flying it as high as 400 feet above ground level, and using it for package delivery. The DOT and the White House both issued statements encouraging local governments eager to participate in the program to work with a private sector partner in developing their proposal.

The DOT is required to launch the program no later than January 22, 2018. Proposals from state and local governments are to be evaluated on multiple factors, including:

  • the overall economic impact of the proposal
  • the jurisdiction’s commitment to safety concerns
  • involvement of local communities affected and their support of the proposal
  • diversity of the operations to be conducted in the jurisdiction
  • involvement of commercial entities in the proposal

 

The DOT must accept at least five proposals by July 22, 2018, but is not limited in the number of proposals it may select. State and local governments chosen to participate will be required to enter into agreements with the DOT regarding their drone innovation zone.

The program requires that the Federal Aviation Administration (FAA) issue waivers from federal regulations as necessary for the approved drone innovation zone. The issuance of waivers is intended to further the federal government’s goal of using state and local governments as a laboratory for the development of future federal guidelines and regulations.

Local governments interested in participating in the program, which is set to terminate October 25, 2020 or later, at the discretion of the DOT, should keep an eye out for additional guidance and begin identifying potential partners. Ohio has not yet indicated if it intends to submit a proposal to become a state-wide innovation zone, but such a proposal could significantly impact the state’s communities.

State and local governments may submit proposals to join the program for up to one year before the program is set to end.

Jessica Trivisonno is an attorney in our Public Law group. She can be reached at jtrivisonno@walterhav.com and 216.619.7870

 

In an about-face move, the Department of Justice issued a memo this month indicating that its interpretation of Title VII of the Civil Rights Act does not protect individuals on the basis of gender identity. Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.

Three years ago, the DOJ maintained the exact opposite policy – that the word “sex” in Title VII encompassed claims of discrimination based on an individual’s gender identity, including transgender status.

However, any assumption that you, as an employer, don’t need to hire a transgender applicant or think twice about an adverse employment action against a transgender employee is incorrect. Even though the DOJ has gone on the record indicating that gender identity is not a protected class, the Equal Employment Opportunity Commission (“EEOC”) continues to maintain that gender identity is a protected class under Title VII based on the inclusion of the word “sex” in the statute. The EEOC is a federal agency that investigates charges of discrimination and tries to settle charges with merit. If the charge is not settled, the EEOC has authority to file a lawsuit against the employer or can give the employee the right to sue the employer individually. In fact, the EEOC just filed suit under Title VII against a company in Colorado for rescinding a job offer to an applicant after the company learned of the applicant’s transgender status.

While some states have laws that prohibit discrimination on the basis of gender identity, Ohio currently does not. Given the uncertainty surrounding whether gender identity is protected under Title VII, employers may still want to consider the EEOC’s position. Since Title VII is unlikely to be amended anytime soon to clarify the issue, coverage of gender identity under Title VII will continue to be debated in the courts, with likely conflicting rulings for the foreseeable future.

Rina Russo is an associate with Walter | Haverfield’s Labor and Employment Services practice group.

 

Max Rieker brings more than a decade of professional legal experience to Walter | Haverfield. With a focus on labor and employment issues, Rieker has successfully represented clients before various arbitrators, boards, commissions and trial and appellate courts throughout Ohio. He has extensive involvement in administrative investigations and prevailed in a variety of termination and employee discipline cases. He also has considerable experience in public sector collective bargaining as he represented clients in dozens of cases through the statutory fact-finding and conciliation process.

Named to the 2017 Ohio Rising Stars list, Rina Russo has significant experience representing employers in the negotiation of collective bargaining agreements as well as 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 and administrative agencies. Her litigation practice includes single plaintiff, class and collective actions.

 

It was nearly a year ago that Crain’s published my blog post headlined, “Will Chief Wahoo be around for another World Series?” So here we are again in familiar territory.

The Cleveland Indians had another great season (even though the post-season was shorter than most of us had hoped) and sales of Indians-themed apparel and memorabilia are through the roof. Although the answer to that question is “yes, Chief Wahoo is still here,” the fate of the Chief Wahoo logo as a protected, registered trademark remains undecided.

Many may have thought the debate was over—at least from a legal perspective — after the Supreme Court ruled this past summer that disparaging trademarks (like the one for the band “The Slants” which was initially refused registration for being disparaging towards Asian-Americans) were protected under the First Amendment free speech principle and could not be denied registration on the basis of being disparaging.

The U.S. Trademark Act had originally recited that a trademark may be refused registration if it consisted of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.

However, what remains to be decided is whether or not trademarks that are considered to be immoral or scandalous may be registered. In other words, this is yet another matter for the courts to decide, which means the Chief Wahoo logo could still be protected as a registered trademark. Or not.

Unfortunately (or fortunately, depending on which side you’re on), a decision in the challenge against the Chief Wahoo logo registration has been delayed pending the outcome of a case which involves the refusal to register a company’s FUCT brand of apparel, including clothing for children and infants.

FUCT has already been established as one of those provocative brands that seeks to differentiate itself and garner a loyal following through its strong, controversial graphics. But loyal following or not, the brand’s trademark registration has been refused for being scandalous and immoral. The decision is now under review by the Court of Appeals for the Federal Circuit.

Will scandalous or immoral trademarks eventually go the way of disparaging trademarks and be afforded protection as registered trademarks? Only time will tell. Should the Federal Circuit decide to allow the protection of scandalous/immoral trademarks, such as FUCT, we will likely see a significant uptick in the number of trademark applications being filed, including those for which registrations may have been previously denied.

There are, of course, many other factors to consider which can also affect whether or not such trademarks can be successfully registered. In the meantime, however, there are important lessons for business owners and would-be entrepreneurs to learn—and that is that the field of intellectual property (IP) law is constantly evolving. What can’t be registered today might be able to receive full legal protection in the future.

Beyond the legal ramifications is the reality that the court of public opinion can weigh heavily when it comes to the success of a brand. Remember back in the 1990s when the Washington Bullets changed the team name to the Washington Wizards to avoid potential negative publicity surrounding gun violence?

An important takeaway for business owners from all this controversy is that, unlike some other areas of law that don’t often see changes or court decisions, IP law is constantly evolving. So make sure you enter the registration battle with a knowledgeable professional well-versed in IP law to give your business the best chance of protecting some of its most valuable assets.

Ultimately, what does this mean for the Chief Wahoo logo? That still remains unclear. Even if those seeking to challenge the Chief Wahoo logo registration eventually strike out, perhaps we could still see a de-emphasis of the logo to appease any public opinion concerns. In this author’s opinion, a complete elimination of the Chief Wahoo logo is probably unlikely due to various other practical and legal factors, which are a topic for a different day (and blog post).

Sean F. Mellino is a partner in Walter | Haverfield’s Intellectual Property practice group.

This article was published in Crain’s Cleveland Business on October 16, 2017.

 

The decision to legalize medical marijuana in Ohio represents an incredible business opportunity for Ohioans. But not everyone who applies for a medical marijuana processing or retail dispensing license in this highly competitive industry will be successful.

To succeed, one must have a sound business plan and enough lead time to properly execute it. Applicants will also need to be well capitalized with a strong (and patient) investor base. Keep in mind that traditional lenders, such as banks, have still not entered the arena because medical marijuana, while legal in the state of Ohio, is still considered illegal under federal law.

Applicants will also need to have identified and obtained local approval for a location (real estate) from which they will operate the marijuana processing or dispensary operations. This can be a difficult task because no medical marijuana processor or retail dispensary may be located within 500 feet of a school, church, public library, public playground, or public park.

The medical marijuana business is not for those who are risk-adverse, nor is it suited for procrastinators. The $10,000 processor application fee and the $5,000 retail dispensary fee are non-refundable. It takes time and a considerable amount of effort to prepare an application that will be seen by the state of Ohio as a viable candidate for a medical marijuana processing or dispensing license. Competition is expected to be fierce based on the number of applications that were received for the medical marijuana cultivation licenses earlier this year.

In addition to the non-refundable application fees, potential applicants can expect to incur legal and other advisory fees. The cost to bring in third-party advisors, however, will likely prove to be a wise investment as most applicants will need to rely on their expertise to help navigate the myriad restrictions and requirements.

With the large number of applicants expected, only the best applications will be considered. The state is looking for applicants who are well-capitalized, responsible and reliable, since license holders will be tasked with the responsibility to provide medicine to what is expected to be a large patient base in Ohio.

In order to assist would-be applicants to optimize their chances for securing a license or to help prospects determine whether it makes sense to pursue this one-of-a-kind business opportunity, Walter | Haverfield has teamed up with other cannabis industry professionals to host a free educational seminar on Thursday, Oct. 5. Among other things, the seminar will cover: important deadlines and requirements for application; zoning restrictions; risk management and insurance options; security requirements; tax consequences; and tips for raising the necessary capital.

This seminar provides an opportunity to connect with a wide array of professionals to get the answers you need before you make the decision to pursue a medical marijuana processing or dispensing license. You can register for the free seminar by visiting www.walterhav.com.

Kevin Patrick Murphy is a partner and chair of Walter | Haverfield’s Corporate Transactions practice group.

This article was published in Crain’s Cleveland Business on October 3, 2017.

 

The ability to rent out your property to travelers has never been easier with the advent of websites such as AirBnB, VRBO and HomeAway, among many others.

Through these sites, property owners are able to rent out a spare room, an apartment that’s rarely used, or a vacation home. However, as short-term rental options are becoming more common, cities across the country are responding in different ways. It is important for property owners to be aware of where their city stands.

Ranging from near-outright bans of the practice to embracing the concept, there appears to be no unified front. Many cities, including Cleveland, have largely remained silent on the regulation of short-term rentals. Their municipal codes do not yet expressly permit or prohibit them. Only time will tell as to which option proves to be the most successful.

Cities that choose to regulate short-term rentals often have a licensing requirement. Denver requires that property owners obtain both a lodger’s license and a short-term rental business license if they are looking to rent out their property. The fee is $50 for every two-year period for the lodger’s license and $25 each year for the short-term rental business license. New Orleans distinguishes between the nature and location of the rental property and requires a fee of $50 to $500 a year, depending on which license is required. Fort Lauderdale recently lowered its short-term rental fees by a significant amount. While a standard vacation registration application used to cost $750, it now only costs $350.

Some cities focus on location, density and time period requirements in regulating short-term rentals. Time period requirements can come in the form of the number of days a property can be rented out in a year or on a consecutive basis. The requirements also address the minimum amount of time for the rental.

For example, Chicago prohibits rentals of less than 10 hours. Palm Springs limits the number of consecutive days a home may be rented out to 28. New Orleans restricts the renting of houses to no more than 90 rental nights per license year and bans short-term rentals entirely in the French Quarter. Las Vegas only allows rentals that are at least 660 feet from each other and even forbids short-term rentals in certain large areas outside of the central city.

Many cities also make the distinction between “hosted” and “unhosted” stays. A hosted stay is similar to the nature of a bed-and-breakfast. It is an owner-occupied rental where a guest rents out a room in the host’s home while the host is also living there and in a sense, acting as a chaperone. An unhosted stay occurs when a renter is renting out the entire apartment or house, and the host is not present. It is similar to a hotel, although the host may not even be present in the same city where the home is being rented.

Certain cities have regulations that distinguish between these two types of stays.

For instance, Fort Lauderdale offers a lower renewal fee of $80 for properties that are hosted compared to the $160 renewal fee charged for those rental properties that are unhosted. Las Vegas distinguishes between hosted and unhosted stays in its permitting requirements. An owner-occupied property in a permitted district with fewer than three bedrooms, located at least 660 feet away from another rental, may simply obtain a conditional use verification.

However, if a rental property does not meet these requirements, the owner is required to obtain a special use permit, which requires notifying neighboring property owners and engaging in a two-part hearing process before the planning commission and city council.

For property owners, it is especially important to be aware of your city’s regulations on short-term rentals prior to beginning the rental process. Many cities that have regulations in place have sections on their municipal websites outlining these requirements. Whether it be a license requirement or a limit on the number of days you can rent out your property, it is important to know the potential limitations and how you can comply.

Emily S. O’Connor is an associate in Walter | Haverfield’s Real Estate Services practice group.

This article was published in Crain’s Cleveland Business on October 2, 2017.

 

In another controversial move, the Office for Civil Rights (“OCR”) rescinded its previous guidance on sexual violence investigations.

In 2011, OCR issued a “Dear Colleague” letter, requiring universities and school districts to respond to sexual violence accusations with a specific protocol, both for investigations and decision-making. A 2014 question and answer document offered additional details about interim protective measures and confidentiality requirements. Among the more hotly-debated provisions, OCR directed educational institutions to use a “preponderance of the evidence” standard in determining whether the accusation was substantiated. Many universities, in particular, objected to these regulations, some even going so far as to challenge OCR’s noncompliance findings and standard resolution agreements.

On September 22, 2017, OCR rescinded the aforementioned guidance in a brief Dear Colleague letter. Although these previous directives may have been well-intentioned, explained OCR, they “have led to the deprivation of rights for many students – both accused students denied fair process and victims denied an adequate resolution of their complaints.” Asserting that schools faced a confusing and counterproductive set of mandates, OCR withdrew the aforementioned guidance and assured districts that it plans to develop a more fitting approach to sexual misconduct.

On the same day, OCR issued a document entitled “Questions and Answers on Campus Sexual Misconduct,” which provides additional details as to schools’ responsibilities in handling future sexual violence complaints. Citing Supreme Court law and sexual harassment guidance published in 2001, this QandA reiterates school districts’ obligations to respond when a hostile environment threatens a student’s participation. As was previously required, districts must still develop grievance procedures, implement interim measures, and conduct equitable investigations. The QandA, however, emphasizes that neither party should be restricted from discussing the investigation with others, and that both must receive written notice with sufficient details to prepare a response. Further, OCR now allows school districts to opt for informal resolutions – including mediation – provided that both parties voluntarily agree to forgo a full investigation and adjudication. Importantly, school districts may apply either the previous “preponderance of the evidence” standard or a “clear and convincing evidence” standard in reaching their factual conclusions. Finally, schools may allow appeals only for the responding party, if they so choose.

In light of these developments, school districts should review their policies and practices to determine whether any changes or clarifications are needed.

If you have any questions about this news alert, please contact a member of Walter | Haverfield’s Education Law Group.

Miriam M. Pearlmutter is an associate in Walter | Haverfield’s Education Services practice group.

Let’s start with that oh-so-dreadful morning alarm on your iPhone®. That annoying sound forces you to get up from that oh-so-comfy Serta® mattress and sleepily walk to the kitchen to make that oh-so-delicious Starbucks® coffee.

It’s your morning routine. It’s a routine saturated by someone else’s intellectual property. That jingle on TV–trademarked. Your iPhone®–patented. The mattress– patented. Your Starbucks® coffee–trademarked. And let’s not forget that all-important coffee maker–also patented.

We have become a world cluttered with patents and trademarks–and for good reason. Without them, some of the most valuable business assets in this country would be left unprotected and vulnerable to misappropriation.

Trademarks refer to symbols, names or phrases that are legally registered to identify the source of a company’s product and/or service. A patent is a right granted by the government to inventors to exclude others from replicating and selling their products.

We, as consumers, observe and utilize numerous patents, trademarks and other kinds of intellectual property hundreds, if not thousands, of times a day. And they are becoming an increasingly larger part of our lives. According to the World Intellectual Property Organization’s statistical database, the number of patent filings in the U.S. jumped 45% from 2001 to 2015. In that same time period, trademark filings increased 51%.

Legal protection for intellectual property is a standard practice for many entrepreneurs and businesses. As a business owner, manager or entrepreneur, it should also become your priority.

Patents and trademarks are crucial to the success of your business and your business’s brand. They provide exclusive rights to a trade name and/or product innovation and offer protection against infringement of those rights.

Those rights also offer a competitive advantage in the marketplace. For example, a registered trademark on the name of your popular pasta sauce recipe means it can’t be replicated and sold by someone else. That’s critical to staying one step ahead of your competition and continuing to add value to your brand.

Without formal intellectual property protection, such as obtaining a patent or registering a trademark with the U.S. Trademark Office, your internet presence and online business are at risk. A competitor may use the name of your business for their business and optimize the capability of search engines to direct the online traffic to their site. That leaves you far behind in the shadows.

Therefore, it is advantageous to take the time to invest in protecting your most valuable assets. Our intellectual property attorneys have been helping to protect the brands and innovations of companies of all sizes for decades. We serve a broad base of clients who span the country and the world. Our depth of experience allows us to tackle even the most complex intellectual property issues while we focus on maximizing opportunity and revenue for our clients.

Jamie can be reached at (216) 928-2984 or jpingor@walterhav.com.

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 lwolfe@walterhav.com.

Chances are, if you see a large commercial real estate development project going up in the region, our real estate team was likely involved. We are fortunate to be partnering with some of the most reputable developers, owners and lenders in the real estate business to maintain a large book of business that’s having a major economic impact throughout Northeast Ohio and beyond.

Some of our higher visibility projects include Pinecrest in Orange Village, the Johnson Controls Hall of Fame Village in Canton, the Bowery and Goodyear East End Projects in Akron, the Link59 Project in MidTown, the IBM Building in Opportunity Corridor, the Columbus Avenue Project in Sandusky, the Playhouse Square Foundation Apartment Project in Downtown Cleveland, the Scranton Peninsula Project in the Flats, and the Church and State and Music Settlement Projects in Hingetown. These projects represent billions of dollars in development costs, some of which have already been expended and some that are yet to be spent over the next several years.

Here’s a quick snapshot of the progress being made at these noteworthy projects:

Pinecrest is well underway and slated to open in 2018. This upscale mixed-use district has captured tenants such as Whole Foods, REI, and Williams Sonoma, along with a Marriott AC Hotel and residential apartments. Our lawyers have represented the developer in every aspect of the project, from land acquisition to TIF to zoning, financing and leasing. It’s a truly inspiring project.

Our representation of developer Stu Lichter and Industrial Realty Group, the master developer of the Johnson Controls Hall of Fame Village, has been on the fast track since the inception of the project. It recently hit a milestone with completion of Phase 2 of the Tom Benson Hall of Fame Stadium which opened to rave reviews at the Hall of Fame Game between the Cowboys and Cardinals in August. Ground has broken for a 4-5 star Hilton Hotel-Curio Collection adjoining the Stadium and Center for Excellence. The Youth Field Complex has been busy, and our lawyers have been working on development of and financing for the balance of the project, including the organization of and related financing for the State’s first Tourism Development District.

The Bowery Project in Downtown Akron will be a mixed-use development financed in part with both Historic Tax Credits and New Market Tax Credits. This transformative project will also have a TIF aspect as part of its capital stack.

The Link59 Project in MidTown between East 59th and East 61st is under construction with a spec office building fronting on Euclid Avenue, a renovated office building on East 61st, and a new ground-up Dave’s Supermarket. A very complex capital stack has been assembled for the Dave’s project, including multiple NMTC allocations, grants and conventional loans. It will bring a full-service supermarket and new jobs to this food desert in an economically distressed part of the City.

The Columbus Avenue Project in Downtown Sandusky is a twinned HTC/NMTC transaction that will bring three older buildings to life and transition the City of Sandusky offices to the renovated buildings in Sandusky’s newly formed Historic District. Market rate apartments and ground-floor retail will also be part of the innovative development in a City which has not previously enjoyed the benefit of tax credit allocations and financing.

Massive and exciting is the only way to describe Playhouse Square Foundation’s announced market rate apartment project at E. 17th Street and Euclid Avenue across from the Connor Palace Theatre. At 34 stories, it will bring apartment living in the City to new heights, along with a new 550-space parking garage. Construction is slated to begin towards the end of 2017.

The announced sale of Forest City Realty Trust’s Scranton Peninsula property to a group of local investors is a harbinger of development to come for this prime piece of real estate that has been on the waiting list for decades. Our attorneys represented the developer group which acquired the property and will be a team member as plans move forward for the property.

Last but not least, the Hingetown area situated between Ohio City to the north and Gordon Square to the west continues on its rapid pace of development and redevelopment. Our real estate attorneys represent the joint venture which will construct the Church and State apartment project on the south side of Detroit Avenue between West 28th and 29th Streets. Our attorneys also represent The Music Settlement (TMS) in connection with its new Hingetown location in the mixed-use project being constructed by The Snaveley Group and other investors at the northwest corner of W. 25th Street and Detroit Avenue. TMS will take 19,000 sf. of space on the first floor of the building and open six early childhood classrooms, music instruction rooms, a music therapy room, a dance studio, and much more.

We thank our great clients for their vision and their work. We are proud to be team members with them in bringing these projects to life.

Jack can be reached at (216) 928-2914 or jwaldeck@walterhav.com.

Employers across the nation may have thought they were done with changes to the overtime rule. Not so.

Way back last November, the U.S. District Court for the Eastern District of Texas issued a preliminary injunction barring the Obama Administration’s nationwide implementation of new regulations that would have established a higher salary threshold for certain employees to be considered “exempt” from overtime requirements under the Fair Labor Standards Act (FLSA). Under the proposed regulations, the minimum salary level for executive, administrative, and professional employees to be treated as exempt from the general requirement that employees be paid time and a half for all hours worked over 40 in a week would have been $47,476 per year. The injunction represented a reprieve for employers across the country, as the new salary threshold would have impacted the compensation of approximately four million workers.

Ten months, a decidedly significant sea-change in Washington, D.C., and two nominees for Labor Secretary later, the U.S. Department of Labor (DOL) has issued a Request for Information, asking employers, workers, and interests groups for feedback on what the salary threshold should be. A few things to keep in mind:

  • On August 31st, the federal case down in Texas concluded with Judge Amos Mazzant issuing a final ruling that, while the DOL had the statutory authority to set a salary floor for exempt status, the specific salary floor set by the Obama overtime rule was invalid. The DOL promptly abandoned its prior appeal of Mazzant’s earlier preliminary injunction – and the Texas case is now over.
  • The DOL will be collecting responses to the RFI through late September.
  • At his confirmation hearings in March, Secretary of Labor Alexander Acosta signaled his belief that, while the Obama overtime rule represented an excessive increase, some increase is warranted because the salary threshold was last updated in 2004 and “life does become more expensive over time.”
  • The RFI strongly suggests that the DOL is considering an inflation-based approach to raising the floor. According to the DOL’s CPI inflation calculator, an adjustment to the rule to account for inflation between 2004 and 2017 would result in a new threshold of somewhere between $30,000 and $33,000, depending on regional differences.

So, amidst all this uncertainty, employers are left in a lurch in terms of building and maintaining their compensation models. A few recommendations:

  • Employers are well-advised to determine to what extent they currently pay non-overtime eligible employees less than $33,000 a year.
  • Employers are also well-advised to start considering the impact of either increasing compensation for these employees to a new threshold (say, $33,000) or paying overtime to these employees for all hours over 40 worked in a week.
  • Many of the same considerations weighed by employers at the time of the Obama overtime rule’s introduction will still be relevant this time around; the only difference is that the Trump overtime rule will impact a smaller cohort of employees. A key consideration is the effect of a higher floor on the rest of the business’ compensation model. For example, if Peter, who was making $28,000 a year, receives a $5,000 raise to preserve his exempt status, what happens to Paul, who was making $33,000 a year for more skilled work? Additionally, should an employer decide instead to keep wages level and make a position overtime eligible, what will be the psychic effect on re-classified employees who may be angry that they now have to punch a time clock even though they have always been considered “white collar.”

Employers should realistically expect some increase in the salary floor for the FLSA’s executive, administrative and professional exemptions. Fortunately, given that both judicial and administrative processes will be ongoing until at least late 2017, employers have time to be thoughtful in their planning.

George can be reached at 216-928-2899 or gasimou@walterhav.com.

On June 23, 2017, the U.S. Supreme Court issued its decision in the eminent domain case of Murr, et al. v. Wisconsin, et al., 582 U.S. ____ (2017). In Murr, the Court addressed whether two legally-distinct, but contiguous, commonly owned parcels should be treated as a single parcel in determining whether a regulatory taking has been effected. The Court rejected the different formalistic approaches suggested by the parties. Instead, the Court held that a multifactor test should be used that examines: (1) how state and federal law defines the property; (2) the physical characteristics of the property; and (3) the prospective value of the regulated land.

In Murr, the landowners were two brothers and two sisters who owned two adjacent lots along the St. Croix River in Troy, Wisconsin. The first lot, “Lot F,” was improved with a cabin. The second lot, “Lot E,” was vacant. The landowners planned to move the cabin to a different location on Lot F and sell Lot E to pay for the project. However, under state and county law a “merger provision” prevented the use or sale of adjacent lots under common ownership unless combined they had at least one acre of land suitable for development. The landowners in Murr had only 0.98 acres of buildable area due to the St. Croix River’s waterline and other topographical conditions. As such, the lots could not be used or sold separately under the law.

The landowners sought and were denied a variance from the county to allow the separate sale or use of the lots. Eventually, the landowners filed suit alleging that the “merger provision” under state and county law affected a regulatory taking by depriving them of all or practically all of the use of their property. The landowners lost at the state court level, and appealed to the U.S. Supreme Court.

In a 5-3 decision, the U.S. Supreme Court held that the landowners’ property should be evaluated as a single parcel, not as two separate and distinct parcels. The Court arrived at this conclusion by employing a multifactor test. The Court held that several factors should be considered, including (1) the treatment of the land under state and local law, (2) the physical characteristics of the land, and (3) the prospective value of the regulated land.

With respect to the first factor, the Court stated that a reasonable restriction (e.g., land use regulations, state and local law, etc.) predating a property owner’s acquisition of land is an objective factor that the property owner should reasonably consider in forming fair expectations about the property. Concerning the second factor, the Court looked at “the physical relationship of … distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment.” Finally, the third factor assesses “the value of the property under the challenged regulation, with special attention to the effect of [the] burdened land on the value of other holdings.”

Applying these factors, the Court held that the landowners’ lots should be evaluated as a single parcel. The Court considered the “merger provision” under state and local law and found that the property was subject to this law due to the landowners’ (or their predecessors’) voluntary act of bringing the property under common ownership. The Court considered the physical characteristics of the lots, specifically their rough terrain and narrow shape, and found that the facts supported treating the lots as a single parcel. Finally, the Court considered the prospective value that Lot E brings to Lot F. While state and local law prohibits the sale of the lots separately, the Court found there were benefits to using the lots jointly, such as increased privacy, recreational space, and the ability to locate improvements in their best location on the lots. Additionally, the Court found that the combined value of the lots ($698,300) exceeded their value as separate parcels (Lot E – $40,000; Lot F – $373,000).

After determining that “Lot E” and “Lot F” should be deemed a single property unit, the Court then determined whether a regulatory taking occurred. The Court found no regulatory taking because the landowners were able to make an economically viable use of the property as a residence and that the combined value of the lots decreased by less than 10 percent due to the challenged regulation (i.e, the “merger provision”). Additionally, the Court found that the merger provision was a reasonable land-use regulation, adopted as part of a combined federal, state and local effort, to protect and preserve the river and immediate properties.

While the outcome of this case is specific to its own facts and circumstances, when faced with a regulatory taking challenge involving multiple adjacent lots, local governments should make a reasonable effort to apply the multifactor test set forth in Murr to make the initial determination of what constitutes the property that is being regulated. This initial analysis will then assist local governments in determining the bigger question of whether the application of the regulation to the property constitutes a regulatory taking.

Aimee Lane is a partner, and Brendan Healy is an associate with Walter | Haverfield’s Public Law Group.

On June 6, 2017, Acting Assistant Secretary for Civil Rights, Candice Jackson, issued instructions to the directors of the regional offices of the U.S. Department of Education’s Office of Civil Rights (OCR) regarding complaints involving transgender students. The instructions come in response to three events that have impacted transgender law in public schools: (1) the withdrawal of two guidance documents by the U.S. Departments of Education and Justice; (2) the dismissal of State of Texas v. United States; and (3) the remand of Gloucester County School Board v. G.G.

On February 22, 2017, the U.S. Departments of Education and Justice issued a letter withdrawing the statements of policy and guidance reflected in the May 13, 2016 “Dear Colleague Letter” (DCL) on the OCR’s enforcement of Title IX with respect to transgender students based on gender identity, as well as a related January 7, 2015 letter. On March 3, 2017, the U.S. District Court for the Northern District of Texas dismissed, without prejudice, State of Texas v. United States, a multi-state lawsuit challenging the May 2016 DCL, and dissolved the preliminary injunction that had restricted OCR’s enforcement of Title IX with respect to transgender individuals’ access to “intimate” facilities such as restrooms. Three days later, the U.S. Supreme Court vacated and remanded Gloucester County School Board v. G.G., a case involving Title IX as it relates to transgender students’ access to restrooms. The Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for further consideration in light of the letter issued by the Departments withdrawing the May 2016 DCL.

Because of these events, Jackson says that the OCR can no longer rely on the policies set forth in the May 2016 DCL or the January 2015 letter to a private individual as the sole basis for resolving a complaint. However, according to the February 2017 letter, “withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.” Instead, the OCR should rely on Title IX regulations, as interpreted in federal court decisions, and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender. Further, Jackson says that the OCR may still assert subject matter jurisdiction over, and open for investigation, the following allegations if other jurisdictional requirements are met under the OCR’s Case Processing Manual (CPM):

  • Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination.
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment.
  • Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment.
  • Retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient’s attention.
  • Different treatment based on sex stereotyping.

In light of the above, the OCR asserts that it will approach each of these types of cases with great care and individualized attention before reaching a dismissal conclusion. OCR has emphasized that withdrawal of the May 2016 and January 2015 guidance documents does not leave students without protections, and the OCR remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in schools. However, at the present time, this area of the law remains very unsettled and school districts are cautioned to tread carefully when addressing issues related to the rights of transgender students. School districts should also be cognizant of state and local laws that may impact the rights of transgender students.

Christina Peer is a partner in the Education Services group of Cleveland-based Walter | Haverfield LLP.

Court decision clears registration path for “questionably offensive” trademarks;
could possibly negate challenges to use of Chief Wahoo logo

By Jamie Pingor and Kevin Soucek.

“Questionably Offensive Trademarks Cleared for U.S. Registration,” also appeared online in Crain’s Cleveland Business on July 12, 2017.

On June 19, 2017, the U.S. Supreme Court ruled that the disparagement clause violates the Free Speech Clause of the First Amendment. This decision emanates from the case involving the lead singer of the rock group called “The Slants” who sought federal registration of the mark “THE SLANTS”. The registration was originally denied by the United States Patent and Trademark Office (USPTO) because the name was determined to be offensive to particular ethnic groups that have been described as having slant-eyes.

At issue in this case is a provision that prohibits the registration of a trademark “which may disparage persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Since the disparagement clause applies to marks that disparage the members of a racial or ethnic group, the U.S. Supreme Court had to decide whether the clause violates the Free Speech Clause of the First Amendment. As a result, the U.S. Supreme Court had to consider three arguments that would either eliminate any First Amendment protection or result in highly permissive rational-basis review.

The Government’s arguments were: (1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new “government-program” doctrine.

In short, the U.S. Supreme Court stated that: (1) Trademarks are private, not government, speech; (2) that just about every government service requires the expenditure of government funds; and (3) that the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.

The U.S. Supreme Court stated that it is unmistakable the Government has an interest in preventing speech expressing ideas that offend, but that this idea strikes at the heart of the First Amendment. The U.S. Supreme Court further stated that speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Therefore, the U.S. Supreme Court held that the disparagement clause violates the Free Speech Clause of the First Amendment.

Only time will tell how much of an effect this ruling will have on U.S. trademark registrations moving forward. Perhaps this ruling will offer plausible protection to sports teams that use logos which could be viewed as disparaging?

For example, the Cleveland Indians’ Chief Wahoo logo, which remains popular among fans, has been viewed, by some, as a disparaging depiction. The Chief Wahoo logo remains a registered trademark; and the registration was recently renewed in March 2016. Will this ruling encourage the continued registration of the Chief Wahoo logo? Will others continue to petition for Chief Wahoo’s removal from the sport of baseball? Nonetheless, what remains clear is that the USPTO is not permitted to prevent certain disparaging speech expressing ideas with regard to trademark registrations.

Jamie Pingor is a partner and Kevin Soucek is an associate in the Intellectual Property Services group of Cleveland-based Walter | Haverfield LLP.

 


We are pleased to announce that
Darrell Clay
who serves as vice-chair of our firm’s litigation services group, is now president of
the Cleveland Metropolitan Bar Association (CMBA).
Darrell, a 20-year member of the CMBA, was sworn in at the organization’s annual meeting on June 2.

In addition to helping
guide the operations of CMBA for the next 12 months, Darrell will direct the implementation of the organization’s
new strategic plan. Key objectives of the plan include strengthening membership by enhancing the overall value
proposition for members, promoting the organization as a go-to source for thought leadership in law and justice,
and repositioning the organization to be more relevant and appeal to changing demographics, including younger
members and sole practitioners. The organization is also actively working to improve diversity in the local
legal market.

Darrell has a long history of active participation in CMBA. Among other services, he served on the membership
(recruitment), bar admissions, and grievance committees. He is a Fellow of the Cleveland Metropolitan Bar
Foundation, as well as the Ohio State Bar Foundation. He has been a strong advocate of the Association and its
ongoing efforts to elevate the overall perception of lawyers and their varied contributions to the community.

During his remarks at the Annual Meeting, Darrell announced plans for CMBA to convene a summit in April 2018 to
mark the 50th anniversary of passage of the landmark Civil Rights Act of 1968, and the 150th anniversary of enactment
of the 14th Amendment, which guarantees equal protection under the law to all citizens.

With more than 5,500 members, CMBA is the largest local bar association in the State of Ohio. Its members are drawn
from all aspects of the legal profession, including private practice, in-house counsel, judges, government attorneys,
law students, paralegals, and business professionals. Its mission is to promote the rule of law, sustain and improve
the quality of and public trust in the administration of justice and the legal profession, and enhance Greater Cleveland
through member, civic and community service, and leadership.

According to Ralph Cascarilla, Walter | Haverfield’s managing partner, “Darrell is particularly well-suited to lead the
CMBA because of his outstanding leadership skills and ability to build consensus, in addition to being an excellent lawyer.”

Darrell has been with our firm since 1997. His practice focuses on complex civil and white collar criminal matters covering
a wide variety of subjects, including antitrust, construction, unfair competition, First Amendment, and other matters.
As an instrument-rated commercial pilot and airplane owner, Darrell also has an active aviation law practice. He has been
selected to Ohio Super Lawyers list for the past eight years in the areas of business litigation, criminal defense—white
collar, and aviation law and was named a Leading Lawyer by Inside Business in the area of antitrust law. He also serves on
the Supreme Court of Ohio’s Board of Commissioners on Character and Fitness. He is a 1994 magna cum laude graduate of Tulane
University School of Law, and holds Bachelor’s and Master’s degrees in political science from University of South Florida.
He can be reached at dclay@walterhav.com.

Walter | Haverfield is pleased to welcome the following attorneys to the firm.


Edward F. Caja
joined Walter | Haverfield as an associate in 2016. Prior to
joining W|H he developed a well rounded aptitude for innovation counseling with
experience in various legal, business, and technical management positions across
many organizational roles from original engineering design and research,
extensive project and program management, and business unit leadership to patent
application preparation and prosecution. Recent legal experience includes
litigation assistance involving patents, trade secrets, business torts, and
unfair competition in numerous art fields. Patent prosecution experience
includes U.S. and international application in multiple technology areas such as
fluid systems, optics, mechanical, electro-mechanical, RFID-based data systems,
computing devices, computer and telecom systems and business methods.

Maria L. Cedroni’s intellectual property practice focuses on patent drafting and prosecution, trademarks, and patent litigation. Maria joined W|H as an associate in 2017. Prior to joining W|H she worked in a Boston area firm for almost 9 years and then a Cleveland firm for 3 years.


Kaitlin Corkran
, an associate in the firm’s Corporate Transactions group,
focuses her practice on a wide range of corporate and business matters,
including new business formation and development, mergers and acquisitions,
stockholder arrangements, and reorganizations. Kaitlin also counsels lenders and
borrowers in commercial finance transactions.


Brendan D. Healy
joined Walter | Haverfield LLP as an associate in 2016, and
is a member of the firm’s Public Law practice group. He has extensive experience
representing public entities throughout Ohio, including cities, villages,
townships, and government agencies. He has advised various municipal boards and
commissions, including Boards of Zoning Appeals, Planning Commissions, and Civil
Service Commissions. Additionally, he served as an Assistant Director of Law for
the City of Cleveland Heights, Ohio.

Patrick A. Hruby is an associate in Walter | Haverfield’s Corporate Transactions group, whose practice also expands into the Litigation Services group. Patrick’s experience includes representing banks and other commercial lenders, commercial property owners, creditors and debtors in the United States Bankruptcy Court, and bankruptcy trustees, among others.

Ellen R. Kirtner-LaFleur is an associate in the Real Estate group. Ellen focuses her practice on a range of commercial real estate matters, including the acquisition and disposition of commercial properties, retail leasing, and real estate finance.


DeMarcus E. Levy
is an associate in the firm’s Intellectual Property
practice group. He focuses on patent law with an emphasis on assistance with
patent prosecution in the electronic and mechanical arts. In addition to
preparing and prosecuting applications in the United States, he has assisted
with advising foreign clients on how to navigate U.S. patent law while keeping
claim language consistent across their international portfolios. Mr. Levy also
performs copyright and trademark prosecution.

William T. Raiff is an associate in the Real Estate group. He focuses his practice on commercial real estate matters and transactions including retail and residential leasing and the disposition and acquisition of commercial properties.


Cary A. Zimmerman
is also an associate in the firm’s Corporate Transactions
group. She represents public and private companies with their corporate and
securities transactions, including mergers and acquisitions, debt and equity
issuances, venture capital, angel investing, and corporate governance matters.
In addition to her Juris Doctor, Cary has a Master of Science in
Management-Finance, which informs her practice and enhances her value as a
business advisor.

By Christine T. Cossler and Christina H. Peer.andnbsp;

The
Ohio Legislature passed House Bill 410 (H.B. 410) last December after
considering the legislation for over a year. The bill became law on
April 6, 2017. As of April 6, school districts must measure absences in
hours, rather than days, and must adhere to new laws regarding student
discipline. The new law substantially changes the truancy law for the
2017-2018 school year, and requires school districts to prepare and
implement policies that emphasize intervention strategies for
chronically absent students. Significant changes have also been made
with respect to student out-of-school suspensions.

Changes Effective on April 6, 2017

Truancy Terminology and Notice

The
new law eliminates the concept of “chronic truancy” and instead
categorizes all students with excessive absences as “habitually truant.”
Students are considered habitually truant when the student is absent
for at least:

  • 30 consecutive hours without a legitimate excuse (formerly 5 days);
  • 42 hours in one month without a legitimate excuse (formerly seven days);
  • 72 hours in one school year without a legitimate excuse (formerly 12 days);
  • 38 hours in one month regardless of excuse; or
  • 65 hours in one school year regardless of excuse.

School
districts must calculate absences by hours, rather than days, in
conformance with the new definition of habitual truancy. The school
district must send written notification to the parent or legal custodian
of any student who is absent, with or without legitimate excuse, for 38
hours in a month or for 65 hours in a year. The notice must be sent
within seven school days of the absence that triggers the habitual
truancy designation.

Make-up Work for Out-of-School Suspensions

If
a student is suspended for any misconduct, the new law provides that
the school board may, at its discretion, permit the student to complete
any assignments missed due to the suspension.

Suspension Carry-Over

Out-of-school
suspensions for any misconduct may not carry-over to the next school
year, but may be converted into required community service or a similar
alternative consequence. The student must begin the community service or
alternative consequence during the first full week of summer break. If
the student fails to complete his or her service requirements, then the
school district may determine an appropriate next course of action, but
may not require the student to serve the remaining time of the
suspension in the following school year. This change does not impact a
school district’s ability to carry an expulsion forward into the next
school year.

Changes for 2017-2018 School Year

Truancy Discipline

Starting
on July 1, 2017, a school district may not suspend, expel, or remove a
student solely due to excessive absences, and therefore may no longer
include excessive truancy in its zero tolerance policy.

Truancy Intervention Policy

A
school district must establish or modify a policy to guide employees in
addressing student absences and the policy must include absence
intervention strategies. Under the new law, the intervention strategy
policy is required for all school districts. The policy should include, as applicable, intervention strategies such as:

  • Providing a truancy intervention plan for habitually truant students;
  • Providing counseling to habitually truant students;
  • Notifying and involving the student’s parent or legal custodian;
  • Notifying the department of motor vehicles and county juvenile judge of habitual truancy; and
  • Pursing legal action in the juvenile court system under certain circumstances.

Under
the new law, habitually truant students whose absences are unexcused
must be assigned an absence intervention team. However, the law creates
an exception for districts with less than 5% chronic absenteeism as
reported on the district’s most recent state report card– those
districts are not required to assign habitually truant students to an
absence intervention team.

Absence Intervention Plan Team

When
required, the absence intervention team must consist of, at minimum,
two representatives from the school or district (at least one must know
the child) chosen by the superintendent or chief administrator of the
school, and the child’s parent or legal custodian, unless the parent or
legal custodian refuses to cooperate.

The team must be assigned to
the habitually truant student within ten school days after the
triggering absence. The team is required to develop an intervention plan
tailored to the student within fourteen school days after the team is
assigned. The school district must make reasonable efforts to provide a
written copy of the plan to the student’s parent or legal custodian
within seven school days after the plan is developed. The intervention
plan must explain that the attendance officer is required to file a
complaint with the juvenile court no later than 61 days after the
implementation of the plan if the student fails to comply with the plan.

Alternatively,
the school district may choose to enroll the student in an appropriate
juvenile court’s alternative to adjudication instead of convening an
intervention plan team.

Reporting Requirements

Starting
in the 2017-2018 school year, the school district must report to the
Department of Education, as soon as practicable, when:

  • A student becomes habitually truant;
  • A habitually truant student violates a court order; and
  • A habitually truant student is provided an absence intervention plan.

Further,
the school district must make three good-faith attempts to entice
meaningful parental or custodial involvement in the intervention team
and, if the parent or custodian fails to become involved, the school
district must investigate whether failure to respond triggers mandatory
reporting to the child protective services.

Looking Ahead

School
districts should plan ahead for end of the year mischief by developing a
list of alternative consequences that can be imposed in lieu of
carrying suspension days into the following school year. School
districts should also determine consequences for students who fail to
complete the assigned community service of alternative consequence
during the summer of 2017.

School districts can expect a model
policy emphasizing preventive strategies and alternatives to suspension
or expulsion from the Ohio Board of Education no later than July 6,
2017. The new law also requires the Board of Education to develop
absence intervention training materials for teachers and staff no later
than October 6, 2017.

School districts should use the summer to reevaluate or adopt absence policies for the 2017-2018 school year.

Christine Cossler and Christina Peer are partners in the Education Services group of Cleveland-based Walter | Haverfield LLP.

Educational podcast provides insights on latest court cases and helps
guide school superintendents and administrators through quickly
changing regulatory landscape

To help school districts stay abreast of the latest court decisions and agency guidance and provide insights on best practices for handling today’s most complex issues, Walter | Haverfield education law attorneys Miriam Pearlmutter and Lisa Woloszynek have launched “Class Act: Updates in Education Law”, a podcast series covering an array of timely issues.

The legal challenges facing schools today are more numerous and complex than ever before. Transgender students, cyberbullying, social media protocols and a significant increase in the needs of special education students are just a few of the many issues facing schools of all sizes in both urban and rural settings. Add to that the rapidly changing rules and government regulations and it’s clear that school officials have more to handle than what already busy schedules can accommodate.

The “Class Act: Updates in Education Law” podcast, which is believed to be the first of its kind specifically targeting school districts, is just one more way that Walter | Haverfield is reaching out to enhance the understanding of the challenges schools face today. Walter | Haverfield’s education law attorneys also provide information to school districts through legal updates presented at a variety of local, statewide and national conferences. The “Class Act: Updates in Education Law” podcast series provides educators an opportunity to get legal updates from the comfort of their offices, homes or cars.

The first topics covered in the Class Act: Updates in Education Law podcast include Section 504 Plans and IEPs, transgender students, and religion in the classroom. “Class Act: Updates in Education Law” is available on iTunes and Stitcher, or you can link to the podcast from Walter | Haverfield’s website at walterhav.com/services/education#podcasts.

Social media exploded recently when a passenger aboard a United Airlines branded flight was forcibly removed from his seat by airport security, in part to make room for four airline employees who needed to be at the intended destination to crew another flight. (No doubt to the chagrin of United CEO Oscar Munoz because the fact that the flight was actually run by one of the airline’s regional affiliates, Republic Airlines, was lost on the general public.) This raises the question: When you pay for your airline ticket, do you have a legal right to a seat on the airplane?

It is a fact of life that airlines routinely overbook their flights. Put another way, they sell more tickets than there are available seats. Overselling inventory would not be acceptable in most other businesses but, not only is it common in the aviation industry, it is perfectly legal.

Surprisingly, however, the practice doesn’t usually result in a significant dust-up captured on video and shared across the Internet. According to the Federal Bureau of Transportation Statistics, in 2015 more than 613 million persons were boarded on flights run by the nation’s largest air carriers. Only 552,000 were denied boarding and, of those, only 46,000 were involuntarily denied boarding. (The rest were voluntarily “bumped,” meaning they took another flight and/or received compensation from the airline for their inconvenience.)

So, should you draw a line in the sand if you become one of the unlucky and are involuntarily denied boarding or are asked to leave an overbooked flight when other volunteers aren’t forthcoming?

First, federal regulations require that the carrier offer you compensation for a voluntary bump. There are no hard-and-fast rules about how much or what has to be offered as an incentive. According to “Fly Rights,” a pamphlet published by the Department of Transportation on the subject (available here), “Carriers can negotiate with their passengers for mutually acceptable compensation.” So if what’s being offered isn’t enough to interest you, don’t be afraid to ask for more.

Second, understand that even though you have paid for a ticket, you are not absolutely guaranteed a seat. Your rights will be governed by the airline’s Contract of Carriage, which does not assure you the availability of a seat, even if you have paid for the ticket. Instead, the airline reserves the right to decide who will be given priority as to seats. For example, United’s Contract of Carriage says that the priority of confirmed passengers “may be determined based on a passenger’s fare class, status of frequent flyer membership, and the time when the passenger presents him/herself for check-in without advanced seat assignment.”

Third, the Contract of Carriage probably limits your ability to recover compensation from the airline if you are involuntarily denied boarding. Again, under United’s contract, liability is limited to actual, proved damages, which cannot exceed $1350. You may be far better off bargaining for compensation than standing firm and trying to bring a claim later.

Finally, keep in mind that the Federal Aviation Regulations empower the pilot-in-command of an aircraft to determine whether any individual can be denied transportation on the basis of safety concerns. Such authority cannot be exercised with unfettered discretion. Rather, the decision to deplane a passenger must be reasonable and can be reviewed by a court if challenged. But it’s probably wise to think twice before refusing a directive from the pilot to deplane.

There’s little doubt that getting involuntarily bumped can disrupt travel plans and be distressing. No one wants to be forcibly deplaned. If this unfortunate situation befalls you, use your smartphone to check the contract of carriage and make sure that you are fully compensated, as is your right.

Darrell Clay is a partner in the Litigation services group of Cleveland-based Walter | Haverfield with a practice focused on aviation law, complex civil litigation, and white collar criminal defense. He is an instrument-rated commercial pilot.

“Small Claims Recovery Increased to $6000 – Should Your Business Be Thinking Small?,” also appeared online in Crain’s Cleveland Business on April 3, 2017.

Late last year, Governor Kasich signed a law that doubled the maximum amount of money recoverable in small claims court, from $3,000 to $6,000. As with any new law, the increase in maximum recovery in small claims court has both positive and negative consequences on Ohio businesses.

On the plus side, one of the main purposes of this change was to permit businesses to recover debts, while avoiding the high cost and length of litigation often found in other courts. For example, in Cleveland Municipal Court, the filing fee for a complaint is $122, but a small claims complaint only costs $37 to file. Because there is typically no discovery, small claims cases tend to be resolved much more quickly. And, under Ohio law, a company can – subject to strict limits – be represented in small claims court by a non-lawyer. (Importantly, although a company may file and present its claim or defense, it cannot engage in cross-examination, argument, or other acts of advocacy without representation by an attorney. Think carefully before selecting this route.)

On the other hand, the new law also has the potential for negative effects. For example, businesses may see an uptick in cases being filed against them in small claims court. As there are no subject matter limitations in small claims court, these filings could include breach of contract and other business disputes, routine slip and falls, and others. Additionally, the monetary increase has the potential for an increase in meritless and frivolous filings. This is because potential plaintiffs now stand to recover twice as much as they could have previously.

Procedurally, the small claims process is fairly straightforward. First, a claim is filed. Typically, this is a single page form identifying the parties, stating the basis for the claim, and including the amount of money the plaintiff seeks to recover from the defendant. After the complaint is filed, the court will set the trial date, usually around 30 to 60 days after the complaint is filed. A party who is sued can counter-sue by filing a counterclaim at least seven days before the trial. Typically, there is no discovery. Witnesses can be compelled to appear by serving them with a subpoena.

On the date of the small claims trial, the parties appear, exchange any documents they want to present to the judge, and possibly discuss settlement. Absent a settlement, the presiding judge begins the trial and it is concluded in approximately 15 to 20 minutes.

In contrast, civil litigation in municipal or common pleas court is not as quick or simple. First, the complaint requires a written response from the defendant. Then, the court sets a status conference for the parties to meet, discuss the case, and set a trial date – which could be a year or more away. Next, written discovery is exchanged and depositions are taken. The legal fees and expenses resulting from this process can amount to an expenditure of time and money that is disproportionate to the value of the claim itself.

For example, before the law was changed, a business seeking to recover on an unpaid debt for $4,000 had to file in municipal court. Because a business cannot pursue a claim without legal representation, it had to make a decision whether it wanted to pursue the claim and pay an attorney or simply let it go. No longer does that business have to make such a determination due to the changes made by this law.

With the increase in the amount of recovery, now is a good opportunity for businesses to review their policies and procedures with respect to documenting losses. If an accident occurs, it is important to document what occurred, who are the witnesses, and take written statements and photographs. As time passes, employees come and go, memories fade and it becomes increasingly difficult to prosecute or mount a defense to a claim. For example, the time period to file a slip and fall case is two years and a breach of written contract is eight years. To that end, it is important to ensure that when the time does come to either present or defend a small claims lawsuit, that your business is in the best position to do so. In order to accomplish that, immediately contact your attorney and provide him/her with your claim or the small claims complaint and any supporting documents that you may have in your possession regarding the incident or business dispute.

Companies big and small can be dragged into small claims court, so do not believe that your company is immune from litigation. Many plaintiffs may consider small businesses as easy targets and try to focus their claims on those businesses. On the other hand, plaintiffs will just as likely target large businesses due to their erroneous belief that a small claims complaint will get lost in the day-to-day operations, no one will appear to defend the claim and an easy award of $6,000 can be obtained. Therefore, it is recommended that if a company is sued or wishes to pursue a small claims action, that it retains an attorney. Without an attorney and in the likely event that the opposing party appears, the company’s representative cannot question their claims or defenses. That will significantly hamper the company’s ability to prevail on its claim or defense.

With the increase in the amount of recovery to $6,000, the prospect of lengthy and expensive litigation becomes minimized. As such, companies should begin to consider and incorporate the strategies discussed into their business plans and start thinking small . . . small claims that is.

For additional information or legal guidance, contact David M. Kroh at (216) 619-7838 or dkroh@walterhav.com.

On March 22, 2017, the United States Supreme Court, in the case of Endrew F. v. Douglas County School District RE-1, created a new standard for determining whether a student with a disability under the Individuals with Disabilities Education Improvement Act (IDEIA) has been provided with a free appropriate public education (FAPE). In Endrew F., the Court was asked to decide the degree of “educational benefit” a child must receive in order for the school district to have provided a FAPE. The lower court in Endrew F. used the “merely more than de minimus” standard that had been adopted by the Tenth Circuit Court of Appeals. The U.S. Supreme Court unanimously rejected this standard and instead held that in order “to meet its substantive obligation under the IDEIA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 WL 1066260, at *1 (U.S. Mar. 22, 2017) (emphasis added).

In reaching this decision, the Court reasoned, “[i]t cannot be right that the IDEIA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.” Id. at *2. Notably, the Court did not reject or overrule Rowley v. Hendrick Hudson School District, the U.S. Supreme Court case that first established a standard for the provision of FAPE. Rather, the Endrew F. Court noted that Rowley “did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level.” Id. The Court further explained that a child’s IEP need not “aim for grade-level advancement if that is not a reasonable prospect.” Id. However, that child’s “educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” Id. The Court went on to state that every child should have the chance to meet challenging objectives.

In setting forth this new standard, the Court rejected the parents’ argument that the IDEIA requires school districts to provide children with disabilities with educational opportunities that are “substantially equal to the opportunities afforded to children without disabilities.” Id. The Court noted that this standard had been rejected by the Supreme Court in Rowley and that Congress has not materially changed the definition of FAPE since Rowley was decided. Consequently, the Court declined to adopt the higher standard advocated by the parents.

The standard adopted by the Endrew F. Court does not create a bright-line rule. Rather, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Id. at *3. This standard appears to be similar to the heightened “meaningful educational benefit” standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education. Both Endrew F. and Deal require an analysis of the child’s capabilities and potential for learning to determine the appropriateness of the child’s IEP.

From a practical standpoint, the Endrew F. standard places renewed emphasis on the need for comprehensive evaluations (and reevaluations) of students with disabilities. Without this data, it will be difficult for a school district to demonstrate that a child’s progress is “appropriate in light of the child’s circumstances.” School districts must also continue to be mindful of the requirement that a student’s IEP goals must align with the needs set forth in the evaluation team report. Additionally, districts should continue to ensure that intervention specialists and related service providers collect data in accordance with each student’s IEP and reconvene IEP teams as necessary based on the data collected.

Christina Peer is a partner and the Chair of the Education Services group of Cleveland-based Walter | Haverfield LLP.

In last week’s high-profile decision, the Supreme Court permitted parents to skip the due process complaint procedures if their claims relate primarily to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), rather than the Individuals with Disabilities Education Improvement Act (“IDEIA”). The IDEIA requires school districts to provide qualifying students with a free appropriate public education (“FAPE”) through specially-designed instruction and related services. Section 504, however, is a more general law prohibiting discrimination and obligating districts to provide equal access to public institutions to all persons with disabilities. In the past, courts have often required dissatisfied parents to exhaust the special education due process procedures, even if their claims related primarily to Section 504, and did not involve FAPE under the IDEIA. In Fry v. Napoleon, however, the Supreme Court rejected this approach and provided new parameters for claims appearing to relate to both laws.

This case features E.F., a middle school student with cerebral palsy and a service dog (a goldendoodle named Wonder). Because the dog helped E.F. with various needs throughout her day (opening doors, retrieving dropped items, etc.), E.F.’s parents wanted Wonder to accompany her to school on a full-time basis. The school refused, citing the one-on-one aide assigned to assist E.F. throughout the day as part of her IEP. After the Office for Civil Rights sided with the parents, the school agreed to allow the dog in school to provide E.F. with assistance during the day. E.F.’s parents, however, were concerned about potential resentment issues, and chose to move their child to a different district. The parents then sued in federal court, alleging that the district violated Section 504 and the Americans with Disabilities Act (“ADA”).

The lower courts dismissed this lawsuit, noting that – because any alleged harm to E.F. was generally education-related – the parents were first required to file an IDEIA due process complaint before suing in court. The Supreme Court, however, explained that if a lawsuit does not hinge on a FAPE analysis, the hearing officer cannot provide the requested relief, and a due process hearing is not proper – and not necessary.

In determining whether a complaint primarily addresses FAPE, the Court offered the following tests:

  • First, could the plaintiff bring the same claim if the problem took place at any public facility, not just a school?;
  • Next, could any adult at the school have brought the same claim?

Affirmative answers to these inquiries would indicate that the matter is not a true IDEIA claim, and that a due process hearing is unnecessary. The Court also suggested that starting the IDEIA due process, only to drop it later in favor of going to court, could indicate that the conflict was related to FAPE all along. In short, the Court sought to strike a balance between allowing parents to pursue their claims in federal courts and protecting school districts from FAPE complaints disguised as Section 504 allegations. In moving forward, school districts and their attorneys will need to carefully review parents’ claims and factual history before determining the best course of action.

Miriam Pearlmutter is an associate in the Education Services group of Cleveland-based Walter | Haverfield LLP.

The Trump Administration made a significant move Wednesday night in the national debate regarding transgender students’ rights by withdrawing previously issued guidance from the United States Department of Education (“DOE”) and Department of Justice (“DOJ”) on the topic. The prior guidance from the DOE and DOJ, which was issued by the Obama administration in May 2016 (“May guidance”), interpreted Title IX as requiring treatment of students in a manner consistent with their gender identity. The May guidance provided examples of policies and practices to support transgender students, such as utilizing the name the student has selected, requiring access to restrooms, locker rooms, and overnight accommodations for school trips in accordance with the gender with which the student identifies.

Amidst significant backlash, numerous states sought to invalidate the May guidance through a federal lawsuit in Texas v. United States. The Trump Administration’s Dear Colleague letter which rescinded the May guidance referenced that lawsuit and further stated that the May guidance lacked a formal public vetting process, extensive legal analysis, and an explanation of how the position is consistent with Title IX language. The Trump Administration’s letter also stated that there are conflicting national court decisions and further noted the role States and local school districts should play in educational policy development.

While the May 2016 guidance has been rescinded in favor of State control over the issue, the Trump administration noted that transgender students should be protected from discrimination, bullying and harassment. In a press release, the U.S. Secretary of Education Betsy DeVos emphasized a federal mandate and moral obligation to protect all students and ensure a safe and trusted environment, in which to learn and thrive.

This rescission of the May 2016 guidance comes just weeks before the United States Supreme Court is set to hear oral arguments in Gloucester County School Board v. GG. The Court was set to review whether deference should extend to the DOE’s prior interpretation of Title IX in relation to gender identity. With this new development, the Supreme Court must choose whether or not it will address these questions now.

Finally, while the DOE and DOJ’s prior position has been rescinded by the Trump Administration, the recent decision of the federal Sixth Circuit Court of Appeals in Board of Education of Highland Local School District v. United States Department of Education, et al. remains in effect at the moment. The Highland Court affirmed the decision of the United States District Court for the Southern District of Ohio, which found that a transgender student should be allowed access to the restroom of the gender with which the student identified and should also be called by the pronoun of the gender with which the student identified. The Sixth Circuit Court of Appeals is binding on public school districts in Ohio, absent a contrary ruling from the United States Supreme Court. Thus, school districts should continue to watch for further developments and consult with legal counsel as issues arise.

Lisa Woloszynek is an associate in the Education Services group of Cleveland-based Walter | Haverfield LLP.

As seen in Crain’s Cleveland Business on January 14, 2017.

Closely held business owners know they someday need a succession plan, but most are focused on day-to-day operations and delay addressing the transition process. Company and family dynamics are unique to each situation, so there is no one-size-fits-all solution. Often, the hardest part is knowing where to start. The simplest way is to ask three critical, interrelated questions.

1. Who is involved?

Identify all existing stakeholders. Address which trusted stakeholders can continue operations. Those given management responsibility do not need to be the same people who take ownership.

Then identify (a) what additional training is needed to allow designated successors to run the business; (b) how to compensate successors to keep them incentivized; (c) what is needed to keep management personnel from being removed if they don’t control equity; and (d) a backup plan should preferred management exit the business.

If no one from the next generation can successfully take over, owners must search for outside talent or begin strategic planning required to prepare for a company sale to an unrelated buyer.

2. When to transition?

Most family owned business owners have identified a date (or age) when they want to walk away from day-to-day operations. Ask if current owners desire to remain involved in critical decisions going forward or if they want to exit without looking back.

Tax and estate planning may be required to ensure ownership transfer is completed in the most efficient manner. Consider if it is advantageous to transfer equity over time or implement a recapitalization to separate voting and economic interests.

Certain deferred compensation plans and insurance products are most useful when implemented in advance of retirement.andnbsp; Your transition structure will drive these transfer dates.

3. How to implement the plan?

Economics drives most succession plans. Do current owners plan to give the company away, or do they desire a buyout? Do the proposed future owners agree to assume financial responsibility and ensure their elders get paid?

Knowing exactly who expects to be paid and in what amounts allows planning to maximize payout and minimize taxes. The succession proposal should be communicated to all parties before drafting documents.

Once there is sufficient consensus from all participants, the formal succession plan should be created through corporate agreements and estate documentation.

Experienced financial, accounting and legal counsel can provide options and identify areas of concern. A good succession plan will eliminate lingering uncertainties and ensure your company’s long-term future.

Jacob Derenthal is a partner in the Corporate Transactions Group of Cleveland-based Walter | Haverfield LLP.

The Department of Homeland Security’s U.S. Citizenship and Immigration Services introduced a new version of the Form I-9, Employment Eligibility Verification. The new form can be accessed HERE.

Starting January 22, 2017, employers must use this new version of the Form I-9 in connection with all new hires in the United States. Section 3 of the new Form I-9 is also required to be used in the event a current employee authorized to work under a prior version of the Form I-9 must be re-verified after January 21, 2017. In such cases, simply append the new version’s Section 3 to the employee’s previously completed Form I-9.

No action is needed for current employees with properly completed Form I-9s not requiring re-verification of their work authorization.

The new version of the Form I-9 – which includes the marking “11/14/2016 N” in the footer at bottom left corner of the form – replaces a prior version marked at bottom left as “03/18/13 N.” The new and prior versions are in most ways identical. The chief difference is that the new version is intended to be easier to complete on a computer, featuring such “smart” features as drop down menus, hover messages, and real-time error indicators – in essence, all the tools that have long been available to consumers in everyday e-commerce. These innovations aside, the Form I-9 still needs to be printed out and signed in hard copy for recordkeeping purposes.

While technical compliance requires that the new version of the Form I-9 be used as of January 22, 2017, our recommendation is that employers start using the new version immediately.

For more information on this or other employment law issues, please contact one of our Employment lawyers.

George J. Asimou is an associate in the Labor and Employment Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.

In its first significant action under the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, the U.S. Environmental Protection Agency (EPA) has issued a proposal to ban the manufacture, import, processing, distribution and commercial use of the chemical trichloroethylene (TCE) for aerosol degreasing and spot cleaning in dry cleaning facilities. The EPA’s proposal, issued December 7, 2016, also seeks to require manufacturers, processors and distributors, (not including retailers) to provide downstream notification of TCE use prohibitions throughout the supply chain and to keep limited records.

TCE, also known as tetrachloroethylene and perchloroethylene, is one of 10 chemicals the EPA has identified for priority risk assessment under the Lautenberg Act, which made significant changes to the Toxic Control Substances Act of 1976 (TSCA) and required the EPA to publish a list of 10 priority chemicals by December 19, 2016. According to the EPA, the 10 chemicals were selected based on multiple factors, including their prevalence as environmental contaminants, their widespread use (especially in consumer products), and their perceived or known hazards.

The finalization of the EPA’s priority list will start the clock running on the agency’s obligation to complete a risk evaluation for each of the 10 chemicals within three years. These evaluations will determine whether the chemicals present an unreasonable risk to humans and the environment. If an unreasonable risk is found, the EPA must take action to mitigate that risk within two years.

In general, TSCA authorizes the EPA to require reporting, record-keeping and testing and to issue restrictions relating to chemical substances and/or mixtures. It does not apply to certain substances, such as food, drugs, cosmetics and pesticides, which are separately regulated. With the Lautenberg Act, the EPA now has the power to require safety reviews of all chemicals in the marketplace. This is a fundamental shift in the requirements and approach for addressing chemical safety under TSCA. The EPA has stated that the amendments to TSCA will allow the government to better protect public health and the environment.

TCE is a liquid volatile organic compound (VOC) that has long been considered a probable human carcinogen. In 2014, the EPA completed a risk assessment for TCE which identified serious risks to workers and consumers associated with certain uses of TCE based on its potential to cause a range of adverse health effects. Because the TCE risk assessment was completed prior to the 2016 amendment of TSCA by the Lautenberg Act, the EPA already has authority to publish proposed and final rules covering certain specific uses of the chemical.

It is estimated that around 250 million pounds of TCE are produced or imported into the U.S. per year. Although the EPA’s current proposal is limited to banning TCE as an aerosol degreaser and spot remover in dry cleaning operations, the agency is evaluating whether TCE should be prohibited, in other uses, such as vapor degreasing. The agency is developing a separate proposed regulatory action to address those risks.

Although TSCA imposes most of its requirements on chemical manufacturers, importers and processors, owners and operators of properties and facilities that conduct aerosol degreasing or dry cleaning operations should pay close attention to the fast-changing regulatory landscape surrounding TCE and other toxic substances. By being aware of the types of risks they are exposed to and of significant developments in regulation and litigation, property owners can make better informed decisions about risk management, including decisions concerning lease provisions and environmental insurance protection.

Leslie Wolfe can be reached at 216-928-2927 or lwolfe@walterhav.com.

It’s early in the year. Famco’s employees are looking to get their taxes done. Anticipated refunds will ease the pain from holiday excess. The small manufacturer’s CFO sighs in relief that the rush to complete the corporate W-2s is done. Down the hall, Famco’s controller opens an email from his CEO. Nothing out of the ordinary in how it looks, but its message is a bit odd. The CEO says she’s working on a significant project for tax purposes and needs all employee 2016 W-2s pronto in .pdf form. She’s a hard driver. The controller fears wasting her time if he raises questions, so he dutifully rolls all the W-2’s into one attachment and responds.

No questions asked–just obedience–even though he knows the CEO never works hands-on at this level. But, if that’s what she wants…

The next week, one of Famco’s sales managers stops by the CFO’s door complaining that he couldn’t file his taxes electronically. The IRS claimed to already have his return on file. He expects a substantial refund and is frustrated. The next day, Famco’s logistics coordinator emails the CFO asking about problems with the IRS refusing to accept tax returns.

Curious now, the CFO visits the IRS website. He sees an IRS Notice about false tax returns being filed by criminal elements claiming taxpayer refunds. The ruse is discovered when the taxpayer’s efforts to file electronically are rejected. The Notice warns this is now a common internet scam, “phishing”, where the scammer duplicates a corporate email style and uses what looks like a CEO’s email address as the originating email to a CFO or controller seeking employee W-2s. But the key to the scam is that the email’s return domain is almost imperceptibly varied. Instead of “CEO@famcorp.com”, it might be CEO@famcoorp.com, “CEO@famcorp.rus” or some other slight, but significant, shift.

Famco’s CFO immediately calls his staff together. The controller mentions the CEO’s email and how he timely and duly responded, no questions asked. Copies of the relevant emails are produced. Indeed, the controller’s response with the W-2s was routed not to the CEO, but rather to the internet’s dark underbelly, putting all employee personal identifying information, “PII” (e.g., here: names, addresses, social security numbers and earnings), instantly in scammers’ hands. Sickened, the CFO takes this information to the CEO.

Famco has a serious, immediate problem, and the CEO is very concerned. Suddenly the entire cybersecurity of the company is in doubt. The company’s counsel must be involved. The Tech Support team verifies there was no breach of their firewalls or security in software or hardware. Costly and embarrassing employee notifications must be issued. But how? When?
Federal or state mandated public notification may be necessary. Risk scenarios have to be determined. Do law enforcement authorities need notification? Is that confidential? Board or even shareholder notification requirements may apply. Identity protection needs to be purchased for impacted people at the company’s expense. What about cyber-risk insurance coverage? Intercepted Famco employee refunds need recompense.

The list goes on. Even for a small company such an event can crush profits or worse, with remediation costs running deep into the thousands, tens of thousands of dollars or even more. Larger companies can expect remediation costs running into the millions of dollars as the number of those impacted skyrockets. Bad publicity, loss of goodwill and reputational damage just pile it on.

Some corporate leaders may scoff, “that will never happen to us!” In reality, the question is not “if”, but “when”. Thousands of upstanding companies, large and small, around the country were scammed like this in the past two years alone. Walter | Haverfield’s Cybersecurity Team received a number of client calls here as tax season unfolded last year. No doubt new scams are developing for 2017.

But this sort of phishing scam is avoidable if the company creates an atmosphere of 360-degree verification on trade secret, intellectual property, PII, and other confidential information. Had the controller simply verified the email request with the CFO or even the CEO, the entire disaster would have been avoided. A priority must be stressed within the company of verifying questionable or even routine-looking requests for such information up the chain of responsibility. Company policies need to be in place – with employees trained — requiring verification either in person, by phone, or by separate (not “reply”) email before response to such emails, regardless of the person purportedly seeking the information.

Although Famco is a fictitious name here, these incidents are as real as real can be. The time to “respond” to an incident is before the incident by putting the company’s response outline in place in advance of a breach. Only the scammer knows when that will happen. Experienced cybersecurity attorneys can assist in developing such policies and even more importantly can help create an Incident Response Plan or Cyber Incident Management Plan. If disaster strikes your company—whether or not you had adequate plans in place–make sure you have the right legal resources to help assist in getting through these problems efficiently, effectively and economically.

Craig Marvinney can be reached at 216-928-2889 or cmarvinney@walterhav.com.

Americans spend a lot of time at work. A recent study published by Bloomberg.com, in fact, suggests that the average American works almost 25 percent more hours than the average person in Europe. The raw numbers are about 258 more hours per year which averages out to about an hour more each week day. Comparing working life between countries in an apples-to-apples comparison can be tricky when considering the increasing frequency of remote work. Yet, most people would likely agree that Americans are putting in some real hours on the job.

With a new administration coming into office, there is plenty of speculation as to how workplace laws and regulations might change. While we’re all speculating, let’s consider a long gestating Republican initiative concerning work/life balance that just might become law during a Trump presidency—a re-introduction of compensatory time into private sector workplaces.

Compensatory Time (frequently referred to as comp time) is the practice of an employer providing future paid time off in lieu of immediately paying overtime wages for hours worked over 40 in a week. So, for example, if an employee classified as non-exempt under the Fair Labor Standards Act (FLSA) were to work 45 hours in a given work week, the employer and the employee could agree under a comp time scheme that the employee could bank 7.5 hours of paid leave time for future use. Public sector employers are likely familiar with comp time, as it is a common (and lawful) practice in the public sector. However, the FLSA currently only allows private employers to use comp time under very narrow and limited circumstances.

Congressional Republicans have been pushing the concept of making comp time schemes more broadly lawful for private sector employers for quite some time now. In 2013, the Working Families Flexibility Act was introduced and passed by the U.S. House of Representatives, before dying quietly in the U.S. Senate. The bill was re-introduced in the last Congress and, as the bill’s main proponents (in both the House and the Senate) will all return for the next Congress, it is likely to be re-introduced again. In addition, since President-Elect Trump’s nominee for Secretary of Labor, Andy Puzder (a fine Clevelander!), is a long-time advocate of FLSA reform and workforce flexibility, it is not unreasonable to believe a revamped Working Families Flexibility Act would be signed by President-Elect Trump.

The most recent version of the Working Families Flexibility Act placed a cap on comp time accrual at 160 hours a year. This is a lower cap than the FLSA currently imposes on public employers (240 hours for most public employees and up to 480 hours for safety and emergency forces). The latest iteration of the bill also required cash-out of unused comp time at year’s end. It is important to note that comp time arrangements (both currently for public employees and under the Working Families Flexibility Act’s proposed terms) must be voluntary, i.e. agreed-to ahead of time in writing either between employer and employee or between employer and a representative union.

Given that work/life balance is an enduring issue in the American workplace, employers should continue to evaluate policy tools by which employees can take a breather without unduly disrupting their employers’ operations.

Other (Less-Speculative) Wage and Hour Developments.

New FLSA Overtime Rules Remained Stalled: An injunction barring the implementation of new Department of Labor (DOL) regulations raising the minimum salary level for executive, administrative, and professional employees to be treated as exempt from the FLSA’s overtime requirements has been appealed by the DOL to the U.S. Fifth Circuit Court of Appeals. The Fifth Circuit agreed to hear the DOL’s appeal on an expedited basis but not before the new Trump Administration takes office. Again, the recent nomination of Andy Puzder (an outspoken foe of the new overtime regulations) as Secretary of Labor strongly suggests that this appeal will be abandoned and that the regulations will never be implemented (at least in their current form).

Ohio Minimum Wage Increases in 2017: As we previously reported, as of January 1, 2017, Ohio’s minimum wage will increase to $8.15 per hour for regular hourly employees. The minimum wage for tipped employees will increase to $4.08 per hour. Ohio’s minimum wage is currently $8.10 per hour for regular hourly employees. The minimum wage for tipped employees is currently $4.05 per hour.

Cleveland Minimum Wage Ballot Initiative Blocked: As we also previously reported, Cleveland voters were to decide in a special election in May whether to incrementally increase the minimum wage for businesses operating in Cleveland to $15.00 an hour. However, Governor John Kasich signed a bill prohibiting municipalities from passing minimum wage ordinances different from the state’s minimum wage.

George Asimou can be reached at 216-928-2899 or gasimou@walterhav.com.

If your business has a trademark but hasn’t registered it, one of your most valuable assets could be at risk. A key challenge is that many businesses that use trademarks are not even aware that they can and should be registered.

A trademark is a word, phrase, symbol or design, or a combination of any of these that identifies and distinguishes the source of the goods of one party from those of others. Registration of trademarks offers multiple benefits, including the ability to use the registered mark (®) adjacent to the trademark to clearly indicate that it is valuable enough to be registered with and protected by the United States Patent and Trademark Office (USPTO). Registration also gives the trademark owner access to the federal courts throughout the U.S. and the ability to register the trademark with the U.S. Customs and Border Protection Bureau. Failure to register a trademark can enable third parties to use it or something that is confusingly similar to market their own products, thereby devaluing what could have been a significant asset for the business.

In some cases, businesses use trademarks without realizing that they are trademarks and that they could be registered. Trademarks can exist in many forms including, but not limited to: names of specific products or services; logos for the business or particular products or services; specific colors used with products; characters used in corporate ads, such as pictures of babies, novel creatures, borders, outlines, etc; or product trade dress, which refers to visual characteristics of a product
or its packaging. Without the protection of registration, these marketing assets could be used by another company–perhaps a direct competitor–without easy recourse.

Trademarks can be registered if they are not confusingly similar to other already registered trademarks and if they pass an opposition process which allows the public an opportunity to oppose any published mark believed to be damaging to the opposer. Owners of unregistered trademarks unfortunately would likely not even be aware of the publication of a competing mark for opposition.

An easy, inexpensive registration process

Registering a trademark with the USPTO is relatively easy and inexpensive. The first step is to contact an intellectual property (IP) attorney who practices trademark law to determine if the trademark can be registered. The attorney will conduct a search of trademarks filed and/or registered at the USPTO to determine if any are “confusingly similar” to the trademark under consideration. During this process, the attorney considers key features of the trademark, including its visual appearance and meaning, to determine if anything could be considered “confusingly similar.” The cost of a search is usually less than $1,000.

The attorney must also determine if the mark is “merely descriptive,” which means it is descriptive of the goods or services with which it is used. If the mark “fails” this test, the attorney may advise the client to select a different trademark. Otherwise, the attorney will proceed to prepare an application for filing. It’s important to note that the trademark must already be in use in interstate commerce or the owner must have a bona fide intent to use the trademark in commerce in order for an application to be successfully filed. As part of the application process, the attorney will designate the goods and/or services with which the trademark is to be used. Typically it’s better to use the goods and/or services that are designated in the classification manual of the USPTO, since this will reduce the government filing fee. Typical fees are approximately $275 per class. In most cases, especially when dealing with smaller businesses, the trademark is only filed in one class to minimize costs.

The application is filed electronically online with the USPTO for review by an examining attorney often for less than $1,500. Assuming the application passes the examination, the trademark is then published for opposition before the Trademark Trial and Appeal Board. In most cases, there is no opposition filed. In some cases, there may be an applicant using the same or similar trademark for different goods and services. In these cases, applicants could sign an agreement to not use the trademark on those goods or services of the opposer.

The total cost for registering a trademark (assuming little or no opposition) is typically less than $3,000, not including the government filing fee. This is a relatively small investment considering the long-term potential value of the trademark. The average approval process takes between one and two years.

Protecting trademarks abroad

It’s important to note that a U.S. trademark registration is only valid and enforceable in the U.S. Business owners who are concerned about possible trademark infringement by goods or services made, used or sold in other countries, possibly for import into the U.S., can apply for foreign trademark registrations which are also relatively simple and inexpensive. According to reciprocal trademark laws between the U.S. and most foreign countries, a U.S. trademark applicant can file a corresponding application in nearly any other country within six months of the U.S. filing date and still obtain the effective filing date of the U.S. application.

It is possible to file applications in groups of countries for a reduced filing fee. Most countries in Europe, for example, belong to the European United Intellectual Property Office (EUIPO), so an applicant can file a single application and obtain a registration that is enforceable in all member countries of the EUIPO. Considering that many products are made in China and sold in the U.S., it is very common for U.S. trademark owners to also file applications in China.

Considerations for licensing trademarks

Trademarks can be licensed to other businesses, especially in cases where the business of the trademark registrant cannot be marketed in a particular region or to different classes of goods. However, licensing agreements should always require the licensee to meet certain quality standards in order to maintain the value and integrity of the trademark. Licensors should regularly police the use of the trademark by licensees. A license without an accompanying quality and policing agreement is referred to as a naked license and could lead to an invalidation of the registration.

The value of trademark registrations in an effort to protect valuable trademarks cannot be over-emphasized. As this article has documented, the process for registering trademarks in the U.S. and abroad is relatively easy and inexpensive, hopefully making trademark registration a consideration for even the smallest of businesses.

Peter Hochberg is a partner in the Intellectual Property group at Walter | Haverfield. He can be reached at 216-928-2903 or dphochberg@walterhav.com.

As seen in Crain’s Cleveland Business on November 15, 2016

No one would argue that the Cleveland Indians had a great run this past season. Thanks to their qualifying for the World Series, images of Chief Wahoo deluged our television screens, our print media and our social media postings. Beneath the fanfare, however, are some very serious legal issues that could ultimately challenge the long-term use and value of the Indians icon.

The battle over the appropriateness of using Chief Wahoo has been raging for years now. In 2014, when the Washington Redskins lost a legal battle to protect the registration of its own mascot and Redskins name, the questions around the continued use of Chief Wahoo again came to the forefront. More recently, another legal battle began when a band called “The Slants” attempted to register the band’s name which was considered to be disparaging against persons of Asian descent.

At issue is a federal law that bars the registration of trademarks which consist of or comprise immoral, deceptive or scandalous matter or matter which may disparage individuals. With all of the current focus on the rights of American citizens, there are some in the legal field who argue that this law, which is part of the 1946 Lanham Trademark Act, violates Americans’ rights to free speech. This is one of the arguments being used by the Washington Redskins, who are attempting to overturn the 2014 decision issued by the Trademark Board of the United States Patent and Trademark Office (USPTO) which resulted in the Redskins’ trademark registrations being cancelled — even after decades of using the familiar icon and name. Similarly, THE SLANTS mark was denied registration by the USPTO, but this decision was reversed on appeal by a Federal Court. The Slants’ case is expected to be heard by the Supreme Court sometime in mid-2017.

In early 2016, a similar attempt to cancel a Chief Wahoo logo registration was filed with the USPTO by an organization called People Not Mascots, Inc. There are also, of course, numerous protests and negative publicity involving Chief Wahoo. The matter at the USPTO involving