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all right everybody good afternoon thank you so much for joining uh this is voiceover c4p's uh webinar regarding hb 352 the employment law uniformity act uh i'm chaz billington uh with me today is dan clark um the inauguration got you lady gaga and jlo but you get chas and dan uh it's a slightly different skill set but arguably the same amount of firepower uh with that said let's get going we're going to talk about hp 352 today a big time change in employment law in ohio it's styled the employment law uniformity act it's a terrible unpronounceable acronym uh nowhere near as nifty as the ones that come out of the u.s congress like cobra which is the best named act of all time um the uniformity act is a long time coming and we're going to go through a little bit of the history and do some other things there but without any real hyperbole it will transform a lot of ohio workplace discrimination law and really to the employer's benefit is really an employer friendly law and if you nerd out on employment law um you know that over the last couple of decades there's really not been a substantive or a huge sea change in ohio employment law and that's why this is a long time coming in a very big deal a few cases here there that may you know make incremental changes in the way that ohio deployment laws work but if you work in ohio if you're a multi-state employer who's honored who's got operations in ohio you particularly know that ohio's workplace discrimination laws are a bit of a mess they're all over the place until now they've been very pro-employee and it's not something you would typically associate with ohio you might associate that with california but not necessarily ohio and i want to make sure i preface the fact that i had some people commenting on linkedin and things like that when we were promoting this that i'm not saying employee rights are a bad thing by any stretch of the imagination but in ohio up until this point we're a pretty heavily slanted pro employee uh even a lot of ways like i said more than a california or some of these other more progressive states so much so that an employee u.s chamber of commerce surveyed dan and i will talk about ranked ohio is the 15th worst legal climate for conducting business so certainly there's a lot of room for change at the outset we have the nation's longest statute of limitations six years which is crazy the better part of the decade to bring a claim makes for a lot of issues we have so many different ways to bring age discrimination claims a perplexing amount that is confusing to both sides of the v for employers and for planets we those age discrimination statutes all have different remedies and statute of limitations we also have supervisor liability which is baffling to people who aren't operating in the minority states where that's the case and so all that's about to change um we're going to talk today about a few things first we're going to go through the uniformity acts history it's goals it's rationale it's opponents it's opponents we're going to talk about a summary of its provisions and sort of how it impacts you day-to-day in your workplace and then we're going to take a little stab at the end and retroactivity so stay tuned buckle up get your lunches ready you can ask questions throughout we ask that you put them in the q a dan and i will try to get to them and if you can't there's too many or if there's just stuff that needs a more subjective answer we may reach out individually after to put them in the q a and uh for those of you who are going to ask or are going to put the q a we will circulate the slides we'll circulate the slides later we do that for one very important reason so you will pay attention to us as present the slides and give you the information you need to know after this dan's gonna do a short series of tick-tock videos where he's dancing to pour some sugar on me he's gonna talk about the law in kind of a fun way so keep an eye out for those uh and uh without further ado let's get moving dan thanks chad the tick tock video will be will be a bonus feature uh for everybody that hangs on at the end and registers the um i mean certainly uh the um this this bill uh that was is coming into effect here in april um it was introduced in october of 2019 but but candidly this this is something that is decades in the making uh chaz and i both you know kind of cut our teeth as employment lawyers here in ohio and it had to learn a statutory scheme that that is really uh you know disjointed and and not uh not in line with what others what we're seeing in other states and certainly not in line with the way that the federal employment statutes uh apply most of our our work as employment litigators candidly is in federal courts with federal cause of action and uh state law claims are often secondary to that but um the the scheme that ohio had in place was was sorely in need of uh some updating and um this act in in new law is certainly an effort to do that so um we've got the the the two sponsors representative cross and senator lang most recently uh pushed this through it was signed by governor dewine and the um interesting thing um you know for those of you who are wondering is this a employer or employee friendly the support for this this bill was really pretty bipartisan it passed the house ultimately 57 to 38 and the senate 31-1 only one descending vote in the ohio senate the ohio civil rights commission which advocates on behalf of workers subject to discrimination offered testimony before the general assembly in support of the uh the legislation particularly the bolstering of the administrative uh exhaustion requirements which essentially uh send more of these discrimination claims to the civil rights commission for uh for initial review and potentially adjudication uh this is signed in january coming into effect here april 15 uh so these changes are coming uh uh very soon overall the goals were to bring about a little more uniformity and in fairness and in ohio's employment discrimination statutes the these statutes had been written over years and modified over the years and when you have different sets of authors uh and the authors are all different from committees uh you end up with uh with a final product that it looks like it was written a bunch of different times by a bunch of different people because it was and so it didn't always didn't always line up so uh some of the highlights on on the new law it's going to give our employees time to file administrative claims of the house civil rights commission although also requiring them to do so um it's going to uh as chaz mentioned reduce the statute of limitations which we'll talk about in a moment and um you know prevent some of that simultaneous situations where you've got an employer with facing a charge of discrimination in a lawsuit at the same time it's going to address some of the harassment the defense's available harassment claims as well as amending the the definition of employer to eliminate supervisor liability in most contexts the um you know the one thing you know as we advise clients they they want certainty right you don't want to call and say and get a i don't know or it could be this it could be that kind of answer from your lawyer and um these changes are going to bring up a little bit more certainty for for employers when do this claim have to be filed by um when and when are we going to know that we don't have to deal with the situation anymore how long do i have to maintain these records um we're going to get some some clarity and and more uniformity um the there was certainly a goal was to bring ohio more to ohio more into parity with the federal law i will say this is certainly a big step in that direction but there are still we'll talk about in a few moments there are some distinctions that will remain between ohio's law and uh federal law most typically you title seven americans with disabilities act uh there's those are gonna maintain their you know they're gonna have separate processes which are closer now to ohio's but but still distinct um hopefully you know the the worst the worst thing you hear is is after finding out that you've you've got uh a claim or a lawsuit to deal with you know you don't want to hear you've got another one to deal with simultaneously so uh you're gonna have one one charge or and then one lawsuit not not two at the same time uh hopefully we're going to have an opportunity to to take a look at uh the impact of these statutes limitations and what that means for records retention uh you know and and the costs that retaining those records over a six-year period entail and as chas mentioned the goal here was to to improve the climate in ohio um you know as a place to do business both making it um you know bringing that that predictability and certainty that the businesses need particularly uh multi-state employers who are looking to do business and in multiple jurisdictions you know as a state you don't necessarily want to be an outlier where it's it's harder to come and and operate there because you have to do everything a little differently all right let's talk about the proponents and opponents of this law so if you look at the list here you'll find some notable and probably folks you'd expect to see on the proponent list right but there's a couple of different call outs here i mean some of the big manufacturing the big associations the grocers the ohio manufacturers associations are on here and you know obviously you would expect to see them on there sherm's also on here the society for human resources management also heavily lobbied in favor of this just helping the gatekeeping function of hr helping their day-to-day lives helping the way that they operate business to provide some clarity there like dan talked about specifically for multi-state employers this is a huge win for multi-employers what's notable on here and dan alluded to this earlier is the ocrc ohio civil rights mission and i dug into a little bit about what they were saying you know why is it that they would be supportive of this specifically because arguably it's going to increase their caseload and uh what they really said at bottom is that look requiring complainants to exhaust to first file with the ocrc gives the parties the option to engage in the ocrc's free alternative dispute resolution programs and that is the cost-effective way of disposing of these claims you know they at the same time while the parties get one crack at potentially learning more about the case and potentially even disposing of it in a really cost effective way if it doesn't work out at the same time you still can go file your lawsuit afterwards so the ocrc really viewed it as a a real true win-win and uh you know it and that's particularly true for clients across the spectrum but you know look not every business operating in ohio is a huge multinational company who can withstand a costly lawsuit and this gives businesses a really quick cost effective way to dispose it and resolve of claims prior to a lawsuit if you've been through the ocrc process and we'll talk about it a bit later uh you know that it's way more cost effective than litigation i say that knowing what drives the cost of litigation and it's the lawyers right and it's a necessary evil but cases get into court they can languish for a really long time and if you've been through the ocrc process or the eoc process you know you get a couple stabs at potentially settling the claim you can do that even internally a lot of times so i think that's a particularly big win it was a big driver for the ocrc the ocrc though did take time to note before the ohio legislature that it is operating under a budget deficit and absolutely will need more people uh to deal with what is probably going to be a big influx of cases one of the other things the ocrc was really keyed in on was this this data was the data component of it and really what the ocrc was saying is look as the law currently stands there's no real data collection mechanism we you know we don't really track the cases as they go through the courts of common pleas we don't track that data on a statewide level and this type of change in the law requiring administrative exhaustion is really going to allow the ocrc to dig into the data get the you know the number and the nature of the cases filed that are moving to the state of ohio to better serve you know litigants and complainants who feel they are subject to discrimination and it can guide future legislation or future changes at the ocrc so they view that as a as a big component of why they thought this was a win as well i don't want to be remiss and give short strip to the opponents uh the only opponent that was on record was the ohio alliance and sexual violence and their chief opposition came from not really the whole overall bill really the statute of limitations component of it moving that from six to two years as we'll talk about and their real chief issue was that survivors may not fully have time to process and make decisions about workplace sexual harassment claims in two years just because of uh everything that goes with those claims they are necessarily a little more emotional a little more physiological and so that was their chief complaint um i think ultimately the legislature decided that two years you know is ample amount of time especially with the notice that's being provided um and that you know those concerns while valid we're still not enough to stop the legislation notably as you go through and you look at the committee minutes and you look at the activity of the law at the ohio general assembly you notice that there's an absence of the plaintiffs um the trial lawyers none of that's in there and we think that's kind of interesting i mean undoubtedly we at least have some indication they played a role behind the scenes we know they've been very heavily active in prior versions of this bill in attempts to change ohio here though you don't see that same presence um you know it does certainly change the playing field like we talked before it tends to lead a little bit more towards parity now between employers and employees and interestingly enough as dan and i were talking about you know why would the planet's part be out you know campaigning against this why would they be in the committees ultimately we came to the decision that i don't know this is necessarily even a bad thing for plaintiff's attorneys i mean throughout the course of my practice and dance as well i mean it's rare to see a claim that's you know more than four years old i personally have never litigated a five or a six-year-old claim they'll talk more about why it's hard to do that why it's a bad idea both for plaintiffs and defendants but i certainly haven't seen that and my guess is that not a lot of plaintiff's attorneys are bringing those older cases and arguably as well when we talk a little bit about how the age discrimination framework has changed it was a mess for both sides and if anything my guess is it probably favors plaintiff's attorneys only because dan and i both talked in depth about how many what we would call quick cheap wins we've gotten because somebody didn't understand the age discrimination statutory framework either they missed the statute of limitations they didn't realize they could get punitive damages they didn't realize a particular remedy your cause of action wasn't permitted under the statute they filed under and it gave us a lot of opportunity to dispose of cases pretty quickly so at the end of the day it's not necessarily that this was such a bad thing for either side or a good thing for either side that rebalancing probably benefits both sides of the aisle and so we think maybe that's why we didn't see as much pushback as we you know maybe would have expected so let's talk about passage um like dan said before this law had a pretty fair amount of bipartisan support again 57 to 38 in the house 30 to 1 in the senate ultimately passes a decent balance of you know democrats and republicans favoring republicans a little bit more in the house in the senate you had one loan nay and that was uh uh that was a republican sort of an interesting breakdown but it shows t at it was more bipartisan than perhaps you would have expected um later on in the presentation we'll have a helpful links section and in there we've linked to the ohio general assembly's hp 352 page it's actually a i mean i guess if you want to really go deep on this thing it's a real treasure trove it's got the summaries it's got the build text as it went through each house as it went to the general assembly each committee's got its minutes on there and you can really get a feel for who is advocating and what the real advocation was it's pretty interesting to go through and read it specifically because if you're going to be making arguments about these laws interpreting them later you know it's not a bad idea to figure out why these things were introduced what the legislature was intending because inevitably there are gaps and we'll talk about specifically the effective date a little bit later to the effective date there's been a real debate here um as to what the effective date is it says in the bill 90 days after signage right and technically that's april 12th based on when it was actually passed but the ohio general assembly's website says it's april 15th not sure why um that may change but we don't think it will maybe april 12th is a monday maybe nobody wants to deal with a new law coming out of a weekend you know the 15th is a thursday and it's like you know a lot more palatable for dealing with applause i'm not sure but any event the ohio general assembly says 415 that's what we're going with right now unless we hear anything else and i also thought just as a interesting anecdote the other law signed on the same day which got some press as well was hb 295 which regulates the most vile and vexing urban flight electric scooters so that was the other law passed alongside this i don't think it'll have the same impact but our streets will be safe from you know street toughs on roving on electric bikes and scooters so big day for ohio law on the 12th i'm going to kick it over to dan actually here's a close-up shot of mike dewine tiny hp 352. i think it's notable you can see you really went at it and dan is currently on mute um which in today's generation should not be happening we've been on zooms for nine months but somebody has to do it i was i was just talking i was getting to the electric scooter discussion and um got a little really excited separate electric scooter webinar i think it's equally as important i'm signing up for that i'm gonna be the first one but certainly the the headliner here um in hb 352 was the change in statute limitation that understands what a statute limitations is uh you may not know what an administrative exhaustion requirement is but you know the concept of how long do i have to file a claim before it goes away um that so that that was what certainly drew the most public attention um to to this new law uh we shortened from as you can see six years to two years and um you know i can tell you that um you know around the country uh working in you know various states and and seeing their their statutes you see two years you see three years sometimes maybe four years six years was just way out of out of the norm and certainly the hot the longest statute limitations of the country so you know two years it certainly uh brings us much more into the mainstream uh among the states certainly provides um you know more than adequate time for someone to realize they have a claim they and to and to assert it if they believe they've been uh discriminated against but um the uh the issue uh issues i mean raised by by six years are obvious i mean what you can see the the cynical response to uh to the statute is that all employers are looking to reduce the statute limitations so it's harder harder for people to to bring claims of discrimination uh i think you know the answer that is two years is still uh more than adequate time to to assert a cause of action and that we'll see in a moment that could be extended beyond the two years but um you know the reality is if you think about an employer think about your own situation what's your what's your turnover rate um is it 20 is we've we've got we've got clients that have see turnover in excess of 100 if your is your business seasonal uh do you hire a lot of students if you think about a business at with a 20 turnover rate after five years if you were to go and defend try to defend a lawsuit filed about an employment decision made five years ago you're not going to have any witnesses left your ability to you may and you can retain the records but but oftentimes you're going to be in a situation where the witnesses to the incidents have gone they're on their three jobs down the road for them the decision makers have have gone or they've moved on other things and uh the ability of employer to offer a defense to to a decision made for five years ago uh was really different uh difficult and prejudicial uh you know and i as chaz mentioned this wasn't a huge give for the plaintiff's bar it's not a it's not a big uh win uh for employers and defense attorneys in that we've not we're not seeing a lot of lawsuits filed five years after someone loses a job or the claim arises the other reality is is that employment litigation they they often tend to be emotional um you know cases they're people losing a job is an emotional uh event uh for a plaintiff and oftentimes the you know litigation results from that emotion even when there is no real um your cause to believe that discrimination has taken place uh you know regardless as as people move on and they they find a new job or maybe another you know they move on in their life the the number of cases number of people choosing to file a lawsuit after you know two or three years after an event has transpired is pretty limited and not something that we saw very often so this is an important change uh but not uh not one that i think is going to dramatically reduce the uh the the total number of claims that we see the other big impact that that uh this has is on uh records retention policies as we you know draft and advise employers about their records retention policies we always have to remind them are you considering ohio's stash limitations you might think you might have a policy that's driven nationally by title 7 timelines where you think after you know after my my federal claims are have expired there's no potential for litigation but um you know in ohio we have to be mindful at least until april the six-year statute limitation so there's gonna be an opportunity to revisit uh some of those records retention policies and make a decision about what makes sense transitioning from a a world where our policies were written with a six-year statute of limitations in mind to this new environment and uh what makes sense uh both from a legal standpoint and a practical standpoint in terms of uh what documents are retained and for how long certainly in that kind of process that's not something you want to do off the cuff uh that you know a change in your records attention policy should be something deliberate and thoughtful um and certainly as we'll talk a little bit as we transition from one statutory scheme to another uh making sure that that we don't lose things that we may still need for for matters that could be filed another um you know significant important change um is is the legacy almost elimination of supervisor you know personal liability um you know oftentimes we'll see uh a supervisor uh or manager named as an individual defendant in employment discrimination action and um you know just as employment litigation is uh personal and emotional for a plaintiff who maybe has lost a job uh i could certainly detest as as can many of you that being personally named in a lawsuit alleging uh workplace discrimination or harassment uh is a very personal uh uh and uh oftentimes emotional uh process and um you oftentimes the we would see individual managers named not for any real purpose the the employer was named as the defendant and the employer would satisfy any judgment or settlement that was that was reached the employee the plaintiff's lawyer oftentimes would name an individual manager or supervisor that was a resident of the state of ohio because that would allow that would prevent oftentimes an out-of-state employer who's doing business in ohio from removing that case from state court to federal court not going to go into the the too much into the civil procedure here this after this afternoon but by you know limiting that tool as you can see to to claims why where the the individual manager is actually the employer maybe the owner of the business uh or it involves a claim of uh retaliation um uh you know we will we will see less ability for uh plants lawyers to strategically name those individual supervisors as defendants in the action uh that'll be an emotional relief for some of them but also strategically it's another tool uh for uh for a defense lawyer to potentially get a case out of state court and in a federal court which uh most time we think is a better form for us as well because i mean in my yeah i mean i've seen hr individuals get drug into these cases named as supervisors because oftentimes you know there is a blur line or there's confusion about hiring discipline and discharge right somebody may key in on an hr individual and say well you were a manager supervisor therefore an employer under the statute and drag in hr people whose job literally is to you know the administrative side of that and counseling the organization through it they can unnecessarily drug into it you know especially in my time in-house having to counsel individual managers and supervisors who've been personally named to think that someone's just called them a racist or a sexual harasser you know publicly or other people can see it you know their friends their family their fellow parishioners at the church and you know am i going to lose my house am i going to lose my job all that stuff was just the unnecessary emotional toll on folks and i i'm glad to go yeah the explanation of oh well they're just doing this you know because of the impact it has on on federal versus state juris subject matter jurisdiction uh is not a satisfying explanation for the person who's who's looking at their name you know in the newspaper or online or wherever uh as a as you know uh someone who's acting out of discriminatory animus right yeah not a welcome song um let's move on to administrative exhaustion which sounds more complicated than it actually is it's a fancy lawyer term for you gotta file with the ocrc before you file a lawsuit um as the law is currently until april 15 um you could buy an ocrc charge and file a lawsuit simultaneously one after the other whatever you wanted to do um it was wildly impractical for employers oftentimes you'd be litigating in two forums sort of at the same time and it really made for extra burden and it both for the state quite frankly and for employers um and in the meantime you know you could also be just way late with cases right because somebody wouldn't have to file an ocrc charge wham you just get hit with a lawsuit and you may not have had that notice like you would in the federal forum of seeing the case before it's actually going to get filed again opportunity to potentially settle that case or you know go through adr whatever it is you just got hit with it landed on your doorstep and and that surprise is pretty frequent i give employers call time we got smacked with a lawsuit you know something happened two years ago and we had no idea this was coming and so that you know surprise elements gonna be taken out so let's talk a little bit about administrative exhaustion how the heck we got here how how did we not have administrative exhaustion when both federal and some other places did they can only be described as a series of judicial and legislative whoopsie dues as usual so originally believe it or not the original ohio civil rights law did require administrative exhaustion it was mandated originally then 1987 hits the general assembly um amends a portion of the law and really they did it to pull out this criminal element of the law there was a misdemeanor element of it and they tried to pull that out the language as is often the case like dan said when you legislate by committee was a little less than clear and what the language said is it's not a misdemeanor per se but you know if actions under 4112 ohio civil rights law are subject to civil action well you can imagine what happened then plaintiff's attorneys immediately went after that and said hey this is a separate cause of action we don't have to administrative exhaust because this is what the legislature says so the year is 1991 enter the ohio supreme court it's 1991 while the whole country is distracted watching i don't know terminator 2 judgment day or whatever the ohio supreme court does in fact interpret that provision to say yeah you have a separate cause of action and that's what set the whole thing up that's what've been subject to this two-track form of litigation with ohio civil rights uh cases and now hp 352 the uniformity act is going to take us back to where the law originally was supposed to be so now you can't just go file a lawsuit in ohio if you're talking about workplace discrimination um you're gonna have to go file with the ocrc first the ohio civil rights committee um the commission then only after you file it are you able to go file a lawsuit in these limited circumstances and so just like the federal framework the ocrc is gonna get a copy of the charge it's gonna and we'll go through the process a bit but at the end the only way you can file a claim is the ocrc issues a right to sue letter much like the federal court what the federal eeoc would the individual can also request it the individual could go in and say to the ocrc i'm just filing this to perfect my rights i just want to file a lawsuit just give me my right to letter or the ocrc potentially finds probable cause and the complainant elects to pursue the claim in court and if you've not been through this process let's do just a little bit of a look at the ocrc process so very much mirrors the federal side of things charging party files the charge discrimination you're going to get notice of it it's going to go to you know wherever it goes to who's on record and you're going to get a notice saying hey this has been filed against you then the ocrc is going to start its confidential investigation process that process is going to be you know a lot of times involves requests for information position statements things like that exactly the same way you have been uh dealing with things on the federal side but this is really for you guys who may not have gone through this before that's what it's going to look like it takes a long time the ocrc has about a year to go through and make its investigation and final determination and then now what it looks like is once they go through that again they're either going to find probable cause hey we think something happened here party charging party or the ocrc can bring suit they'll find no probable cause meaning look we went through this we're just not real sure anything happened here there's not enough we're gonna say no probable cause we're to issue a right to sue letter and then finally again the charging party can't and frequently you see on the federal side they do just simply file a charge to say i want to bring a federal suit i don't want to go through the ocrc process so we're going to see how long these mechanisms take i think that's the big question mark i'm assuming the ocrc is going to get an influx of claims if you look at the doctor reports every day there are multiple employees there are multiple ohio civil rights related cases being filed the question is how long it's going to take to get to the ocrc process even if you request the right to sue letter you know they may take the full statutory amount to actually issue that whether this backlogs and makes you know the cases harder and longer to actually get through the ocrc process all those things remain to be seen but certainly at this point we have a good indication that it's probably going to streamline the proc ss and reduce some of that surprise element flip my slide here so if we look at the process now versus federal law like dan said early earlier it's not quite parody but it's close we're getting closer to what the federal looks like so you can see this chart here get through here there we go you can see this chart here is just a quick rundown of what it's going to look like federal side depending on whether you're at a work share agreement 180 or 300 days to file your charge ohio's two years so even though ohio went from six to two which kind of seems like a big jump but you could see people arguing that you know it's taking people's ability to file a claim it's really not that much different from the federal as a matter of fact it's actually more generous than the federal so i'd argue that any of the arguments relative to the six to the two job kind of ring hollow given the fact that this is the way the federal court the federal system is treating it for years from a lawsuit perspective a little bit different here lawsuit on the federal side look you get your right to sue letter you got 90 days to file it in ohio the interesting idiosyncrasy with this law is is that you're going to have a told statute of limitations so i've got two years to file my claim with the ocrc then it's told statute of limitations is no longer running whatever's left in the tank on the other side of that that's how long you have to fire your claim we think that you know very well could be subject to later interpretation of things like that right now that's what it looks like you file your claim you got 30 days left in the statute of limitations process takes a year to get through the ocrc you got 30 days after you get your right to sue letter to file your claim and um there'll be a lot of back and forth here um there'll be a lot of confusion about dates if you work on the federal side really important when you get these ocrc charges or on the eeoc charge it's the same in ohio really important about when those dates hit when did the claim accrue versus when they filed it did they get in the 90 days you get into mailbox rule you get into all this other stuff that takes place but that is going to be some case law that'll develop in ohio as well and so if you're internal right now and you're in hr or your in-house council you want to be looking at your intake processes for this new ocrc framework right you're going to be one of paying a lot of attention to you know when to claim based on based on the information in the charge when was it filed and specifically how much of the statute of limitations was left when it got once they got the right to sue letter when did the ocrc process actually terminate things like that are going to be really important for the intake perspective when you're assessing those claims initially when they come in so you put that stuff on your checklist or update your checklist or whatever it is that you're going to do and chas i would i would think also keeping in mind the um the potential that the two-year statute limitations really with the addition of an ocrc process could push that to three years uh if the fcrc run runs for a full year when we talk we were talking earlier about i'm going to revise my records retention policy uh you know keep in mind it says two years but you know you you could end up having a lawsuit filed you know all essentially three years afterwards and that would still be be timely so um yeah again not to mention that yeah and also what happens with the ocrc i mean if they get just an atomic bomb's worth of claims all of a sudden filed it's going to be tough to get through in a year again they're under staff they're under you know they're working with the budget deficit you know we may see things push closer to that year mark if you know potentially not over and then what happens in that circumstance again that's all unclear i'm sure courts will clear that up and i'm sure it'll be crystal clear after that good luck with that um maybe certainly an important but maybe not one of the more dramatic elements of the of the new new law is uh the codifying the the fair girl elirith affirmative defense this is for for those of us who um again go back back to the 90s here on on federal title seven sexual harassment um statutes it's a under title seven it is a defense and a harassment case uh the fair rail earth were the two supreme united states supreme court cases that developed affirmative defense it was developed through the through the case law as opposed to in the statute ohio had for its discrimination case claims if you break if you brought a um a sex discrimination case alleging sexual harassment in ohio uh under revised code 4112 the court is going to look to federal title vii uh authorities for guidance uh and that would that would include these affirmative this affirmative defense which has been been around for a long time and uh permits an employer to avoid liability uh in a harassment case if it um you had uh a a real you know a possible policy in place to uh prohibit harassment and gave employees uh an avenue to complain or to complain about harassment and take remedial action and put an employee that fails to take advantage of the the complaint procedure and would lose his or her claim so that that body of case law was developed under title vii has been followed by ohio court supplying ohio law and this this act codifies that and makes it a formal part of ohio's statutory law as opposed to just our case law to the extent there's a takeaway from this i think it's if you know if if you don't have a sexual harassment policy if you don't have an ad a complaint procedure if you don't train your hr you know team or your in-house team on how to handle uh reports of investigations that this is a reminder that that um uh that there is there's a defense available uh and it's critical employer take proactive steps uh to take advantage of that of that that defense in the event you face a complaint from harassment age discrimination cleanup is chas alluded to at the outset the the age statutes in ohio were a mess there were numerous different claims that could be brought alleging age discrimination the statute of limitations for those claims varied dramatically from 180 days to six years and uh depending on which claim you asserted that impacted the remedies that were available to you there were some um you know good good defense is available to employers in the event that an employee brought an ocrc charge before they brought uh an action in in court and um those were surprising and difficult i think this is one of the um the the changes of the law that that's probably the most helpful to um uh to employees only in that that it makes it it makes it far easier to understand that an age claim in ohio is now an age discrimination claim is now no different than a race discrimination or sex discrimination claim the process is going to be uniform in a two-year limitation limitations period will apply to all of those um so that was that was an area where again it was it was convoluted and kind of growing up with these these statutes as as uh as younger lawyers learning the the law in ohio there were kind of some head scratching moments of well how can how can it be that way but it did result in a lot of kind of technical victories for employers able to defeat claims or exclude certain remedies because employees didn't know how or didn't really understand the the statute and uh this makes it uh certainly more uniform um again providing a little more clarity and certainty to both employers and employees another issue caps on damages ohio you know torah forum has been around for a while yeah limits put limits on compensatory damages and there were arguments uh made by employers that those those limits should be applied to ohio's two claims arising under um uh employers were you know predominantly successful um in in in those arguments and those have been now codified as a part of the statute uh and essentially you can see here what what that means that the economic damages are are what they are whatever the employee lost in terms of lost wages and benefits as a result of the the act of discrimination they can recover but there are limits placed on the non-economic damages and the punitive damages which are um kind of the the harder to predict elements the kind of pain and suffering the mental anguish um claims that that um are harder to value and if if they're left if there's no cap on those damages you know you can make an argument the uh you that the damage is in a um employment discrimination claim where we're limitless and and so this um this scheme and this act uh codify some limits on those damages both in terms of the pain and suffering type damages as well as punitive damages which are damaged just designed to punish an employer who has acted um in violation of the statute so should to deter um uh future violations so this is certainly uh a cleanup and uh something that that provides again further clarity and certainty as to both sides as to what what the scope of potential damages are in an ohio employment discrimination case with respect to that is whether the caps apply to judicially modified damages or jury awards and you know this case law came out from a couple of years ago from the lurie case i don't know if dan man mentioned that rather but that was the 43 million dollar sort of runaway jury verdict in an age discrimination case and we've got a lot of judicial attention then the law has been this way this codification is just you know in the event there's a powerful appellate court that for whatever reason or a trial court doesn't isn't following it it's clear now in the law but i think that's that really only the only outstanding issue is what is the cap going to be based off of i guess we'll wait for more judicial interpretation of that it chaz before we we switch to retroactivity here if i could just jump in i've been following the q a um one glad to see so many people attending which is which is great and we've also got a lot of questions and um like i could tell we're not gonna be able to hit all the questions and and so if you have questions uh please get them submit them now to the the q a on any of the things we've covered we we will if we don't get to your question uh as a part of the webinar we will be able to follow up with you uh afterwards but only if you get into the the q a so if you've got something you're thinking about um maybe you can you know put that in now while chas drones on about retroactivity okay wow um how dare you um retroactivity this is the big question about the uniformity act does it apply to retroactive if you look here this is the quintessential example if i have a claim that accrued so i was terminated and i believe that it was based on discrimination four years ago i have not filed a claim haven't filed no crc charge but as of april 15 do i still have a cause of action or does the two-year statute of limitations essentially extinguish that cause of action the answer is we don't actually know um we have some ideas and we'll be happy to give those to you but we don't actually know because hb 352 the uniformity act was unclear as to the specific proven they had the ability legislatively to say it's retroactive they didn't do that so that's going to leave it again up to interpretation couple of takeaways here generally speaking statutes in ohio are presumed prospective rather than retrospective so that's one thing but there are there is case law developed in other areas that would suggest that you can shorten the statute of limitations taking away a substantive right or a vested right because that person hasn't filed a claim yet there's also the retroactivity clause in the constitution which says that you can't take away a vested right can't take it right we're not sure how this is gonna go but we see the potential for a couple different ways for it to go you know one way here is the the courts or potentially the legislature later on says it's not retroactive if you have a claim in the past and as long as you bring it you know within the statute of limitations in in effect at the time that claim is still viable another way it could go is that hb 352 this new law could apply but only with respect to administrative exhaustion so i have a claim that's four years old i go to file at april after april 15th maybe i don't have the right to go directly to court i still have to file that claim with the ocrc that's the middle ground and then the third potential is that it is in fact absolutely retroactive and it would apply to accrue but unfiled actions and so it's kind of the way we see the world right now again we are going to need to of course to decide this you know it could take years but to make its way through the system but as of right now you know we see arguments on every side here's the good news at the end of the day you have all those arguments right now if one of these claims gets filed and it is outside that two-year statute of limitations and it is april after april 15 2021 heck yeah you're making that argument i'm going to make that argument all day until the court tells me i can't make that argument um you know we've done some of the research we have the case law happy to help out in that scenario but i think look you got the arguments now mate dan what do you think about that i think that that's what we know today uh yeah we'll have to see but i i think um the um you know it's a transition period you know at some point we'll you know we'll be down the road and there won't be the uncertainty so we got a temporary period of kind of you know seeing what uh uh you know what comes and how the the the case law works out but um pretty soon we'll be in under you know where all claims are arising under the new statute and at least going forward um you know i think we treat the the any claim that going forward is covered by the new act active we'll have lingering concerns about about what what may still be out there and potentially actionable um which i think is is uh all the more reason to to be cautious and deliberate and and how you know if you're gonna if you're gonna take a a change in how your intake process or how you're valuing charges cases how you're retaining documents uh you know it's not gonna be a flip of switch overnight that things are gonna be done there's gonna need to be some thought about how do you transition from what from where we are today to where we're going to be shortly yeah so jumping to i did see one interesting q a that i would bring up for dana nice short discussion and that's with respect to supervisor liability one of the caveats to carve outs there is this aiding and a betting concept and somebody made a fairly astute comment that is that gonna be wildly exploited and i think yeah i think that potentially could become the exception that swallows the rule i think you will see these claims continue to get brought with aiding and abetting in them and there's some case law on point already there isn't aiding and embedding portion of many of the existing laws and whether that's directly applicable to this new law unclear most likely courts will use that as a as a guide stone but i do think that's the potential here for a real issue is that we could be litigating heavily for the next year or so what aiding and betting means under the under the current law there's no great answer that right now but i think that is definitely an area that's going to be subject to heavy debate in the next couple of years and and i think you know to the extent that a plaintiff's lawyer is adding a supervisor or manager as individual defendant for strategic reasons related you know maybe to jurisdiction as opposed to some true desire to have that person named as a defendant uh they you know they can certainly make those allegations and alleged aiding and betting the the the individual will be named as a defendant that will have the impact they they desire so it's a i think that's some that's a tactic that we'll see utilized yeah absolutely pretty pretty quickly uh chad i kind of read like three or four questions and this is kind of a combined one um but uh i i think the gist of it is never rea ly done much with the ocrc because we've we've had cases go straight to uh to lawsuits and when we've gotten charges we've kind of ignored them um what's been your experience with uh the oc actual ocrc actually resolving charges through um you know maybe through a mediation process is that effective is that a useful tool for for employer to consider or is it is this just a another hoop we're going to have to jump through so i've had a fair amount of experience with the ocrc i mean probably like you you get more dual file better being handled by the eeoc than you do and the other ones are just straight to core but in my experience the mediation mechanism is as good as the mediator you get um you know and if you get the right mediator and the parties come at it like hey we're you know probably going to be a little pain on each side of this thing and you're thinking creatively about you know it doesn't have to just be money you know loading up some non-monetary incentives yeah i think you have the same opportunity would any other place to potentially set up a case but again i think it's going to be pretty case specific you get a great mediator you know you have a chance someone that's going to talk to both sides pretty earnestly and pretty you know have a real talk yeah i think you got a decent chance i think you're probably better at the eeoc level or in a you know court mediation program but i don't think it's a illusory mechanism for settlement of cases and you know frequently you can go to the eu or the eocrc as well and start to really talk about the settlement process and try to get them to put a little pressure on somebody to think a little bit more clearly about it and think a little bit more you know real about what exactly it is they want out of this thing so it's a long-winded answer of saying yeah i think i think you got a decent shot at it and i i we've had um you know a number of cases over the years where the ocrc actually finds probable cause and elects to [Music] initiate enforcement action of their own uh where the the commission actually break brings an action to to um enforce the description of the the statute itself as opposed to allowing having the employee file a private cause of action in court you know and but the reality is uh is that you know as chaz mentioned the oc the ocrc's resources are very limited their ability to bring enforcement actions um is is um you know a little bit better than zero um and with a flood of new charges to investigate uh you know there's gonna be you know be even if there are a flood of more charges drawing probable cause findings that doesn't mean we're seeing you know many more enforcement actions than they already have uh so the the process the the ultimate decision uh may not matter that much whether the commission finds probable cause or not um yeah except except for one exception and i um i'd love to get some data on this someday but uh i mean certainly as i mentioned earlier the you know for for many um you know an employee who was terminated their their options if they are angry if they are emotional upset as as many are losing a job you know does have emotion involved in it there aren't a lot of causes of action in an at-will state like ohio that employee can go to and uh the discrimination statutes you do provide one such avenue and you know sometimes an employee in a you know an emotional time wants to to to do something to assert something to to to you know do something adverse to their employer to because you know maybe not solve all their problems but but kind of get that out um and and and maybe that helps them move on to what's next it's a lot easier and cheaper to have them get through that process with an administrative charge as opposed to a lawsuit costs are far less and and sometimes simply filing the charge letting that process take you know take place go forward by the time the agency resolves the charge maybe you know that employee has found a new job they've moved on they've got a better situation and litigation in court involved which would involve discovery and depositions and in both time and money and um and energy is not as attractive whereas when they were first coming off this this decision you know termination decision and they were emotional and angry uh you know maybe maybe they're you know a little better spot and and maybe having gone through the charge process first it it reduces the the the likelihood that that employee's going to choose their former police can choose to file a lawsuit but that'll be interesting if the commission starts you know put it starts putting out we get reliable data we could we could even uh maybe try to evaluate that that'd be interesting yeah sometimes just taking a temperature down and giving an employee a bit of a cathartic release can be enough i mean the best mediators in the world that you know can mediate in a way that allows an employee to get in front of their former employer and say i mean for lack of a better word hey you screwed me man and i'm mad about it and sometimes just getting across the table seeing another human there's a lot of times why i advocate sending client reps with me to mediations and things like that to allow them to look at somebody and talk to them and maybe even say look this is a bad situation we're sorry it ended this way but it wasn't because of x y and z and sometimes that can take a little bit of the temperature down and then likewise a lot of times you know you have plaintiff's attorneys who are evaluating these cases solely off of what their clients are saying and the process of going through the ocrc will provide additional information and education um and so hopefully that'll at least have some effect of taking some of the more frivolous claims now when plaintiff's attorneys get a lot more information from the oc person process potentially re-evaluate claims in a way that they would if they were just getting information directly from you know a heated up litigant who's just looking to take their pound of flesh out so moving on um here's some helpful links guys just take a peek at these you know these are some things that we use to put the presentation together certainly the hp 352 summary page at the ohio general assembly fantastic resource again you could nerd out go down that rabbit hole read all the committee notes i did it's pretty interesting second i would be remiss if i didn't shamelessly self-promote our e-alert on the same subject which is of course right there take a look at it it'll go in a little bit of a deep dive and then last but not least for those of you i saw a couple of q a questions about the ocrc process and someone asked but it stands for the ohio rights commission if you're curious about that process if you haven't gotten a charge you might right especially in the next year you might get one that's an interesting resource that'll talk about what the ocrc does does not do and how they handle cases and things like that that's a nice starting point because you get one of those before you lawyer up you may want to go look at that resource you know just get familiar with the process here's a picture of dan and i's mugs along with our contact information if you'd like to call us or email us rather it's right there also our linkedin profiles you can follow both of us if you want to see us posting you know new developments and articles and things like that i'm always happy to interact in that uh arena as well so you know with that again if we didn't get to your questions we're really sorry um we're verbose and we will follow up with you afterwards um and help you out with that a lot of the questions too were hard to do on the fly while we were doing the webinar and we'll give you a little bit more of a thoughtful response we have time to dissect it a little bit but you know feel free to reach out contact us if you have any questions the slides will be shared afterwards that we send out via email so we'll have copies of them along with paying a nice picture for you know later use or anything if you want to know what we look like you can't remember us um but other than that you know with that then i don't have anything else right at the top of the hour anything else before we go no it was fun thanks all right everybody thank everyone for joining so happy appreciate your time i know everybody's busy hopefully you got through lunch and you got some learn some lunch and learn here and uh we'll see you next time thanks you