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Legal Focus

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Pursuant to a recent court ruling, employers who paid Ohio Worker’s Compensation premiums between 2001 – 2008, and which were not group-rated, may be entitled to reimbursement for a portion of their premiums.

 

In the case of San Allen, Inc., et al, v. Stephen Buehrer, Administrator of the Ohio BWC, Cuyahoga County Court of Common Pleas, Case No. CV-07-644950, the plaintiffs consist of Ohio employers who paid workers compensation premiums during the indicated period, and which did not receive group-rated premium discounts. The lawsuit contended that the BWC’s premium discounts for group-rated employers were too steep and that the BWC overcharged other employers to make up the difference.

 

The case was granted class-action status meaning that any employer that paid premiums to the BWC on a nongroup-rated basis during any one or more of the policy years in question is automatically part of the class unless it affirmatively opted-out.

 

The plaintiffs initially requested close to $1.3 Billion in reimbursement for class members. In a decision issued December 28, 2012, Judge Richard McMonagle determined that the BWC did indeed overcharge the plaintiff employers and that the class is entitled to reimbursement. However, the judge also determined that the plaintiffs are not entitled to interest on these amounts and therefore ordered the plaintiffs’ counsel to recalculate the damages and submit a new figure by January 28, 2013. While this will reduce the ultimate award, the figure is still expected to be close to $1 Billion in damages.

 

The formula for how individual employers will be reimbursed has not yet been released or approved by the court.

 

The Ohio BWC has stated that it is disappointed in the decision and intends to appeal, so even if this decision is ultimately upheld, it will likely be many months before any distribution would be made to class members.

 

Regardless of whether it is a class member, all Ohio employers should continue to follow this case. Class members will naturally be interested in how much reimbursement they may be entitled to. Non-class members may still be impacted because if the BWC’s appeal fails and it has to pay this judgment, it may have to raise premiums in order to recoup some or all of its losses. As developments continue to arise in this case, Cors & Bassett will provide further information and guidance to assist you. Please contact David Schmitt at djs@corsbassett.com or by phone at 513-852-2587 if you would like to discuss this matter further. This article is for general informational purposes only, is not for the purpose of providing legal advice, and does not establish an attorney-client relationship. You should consult with an attorney to obtain advice as to your particular issue or circumstances.


This article is for general informational purposes only, is not for the purpose of providing legal advice, and does not establish an attorney-client relationship. You should consult with an attorney to obtain advice as to your particular issue or circumstances.

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When obtaining automobile insurance coverage it is critical that you request from your agent uninsured/underinsured motorist coverage as Ohio law has changed and the insurance company is no longer required to offer this coverage to you. As a result, many are unaware of this coverage, and fail to obtain what is probably the most important coverage for your well-being, and that of your family.

 

If you are seriously injured in a vehicular accident, and the individual who caused the accident has insurance coverage of the State minimum of $12,500.00, the amount you can recover for your wage loss, medical bills, and pain and suffering is limited to $12,500.00, unless the individual who caused the crash had significant other assets, which is typically not the case. The only way to protect yourself and your family is to have significant uninsured/underinsured coverage. For example, if your damages total $250,000.00, and you have underinsured motorist coverage of $500,000.00, you can obtain $12,500.00 from the insurance company of the person who caused the crash, and the balance of $237,500.00 from your own carrier pursuant to your underinsured coverage.

 

It is also important to understand the concept of subrogated medical expenses. Subrogation is a term in your health insurance policy which means that you must reimburse the carrier for the medical bills it paid if you recover money from a third party or his insurance company. In the past you were entitled to be reimbursed first for your damages, and once you were fully compensated, the health insurance company would be repaid. The Ohio Supreme Court has changed Ohio law and held that the health insurance company gets paid first. Assume that your underinsured motorist coverage is $50,000.00, and once again your claim is worth $250,000.00. If your medical expenses alone total $50,000.00, your health insurance company, pursuant to the concept of subrogation, is entitled to be repaid in full before you receive any funds. Accordingly, assuming you had only $50,000.00 in underinsured motorist coverage, all of that money would go to repay your health insurance carrier, and there would be no money available to adequately compensate you and protect your family. As a result, purchasing an adequate amount of uninsured/underinsured motorist coverage is important.

 

This article is for general informational purposes only, is not for the purpose of providing legal advice, and does not establish an attorney-client relationship. You should consult with an attorney to obtain advice as to your particular issue or circumstances.

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I frequently hear reasons why employers avoid handbooks, such as:
• “Our company is too small, we don’t need a handbook.”
• “My employees won’t read it anyway, so why bother.”
• “A handbook will simply give my employees ideas about ways they can sue me.”
• “I need to be flexible when managing my employees.”
• “Handbooks are too expensive.”
• “Why do I need a handbook, I’m an at-will employer?”

 

In fact, there are many advantages to having an employee handbook. A well-written and up-to-date handbook allows an employer to confirm the at-will relationship with its employees. A handbook sets the stage for consistent and uniform management practices, and advises all employees of the company’s policies and rules – without written policies, past practice becomes policy. A handbook saves employers from having to answer the same employee questions over and over, and helps to ensure a uniform response. A handbook is a convenient way to provide your employees with information that you are obligated to provide by law. And an employee handbook is a convenient place to include one absolutely indispensable employer policy – an EEO and sexual harassment policy with a complaint procedure. Such a policy may be the employer’s only defense to a hostile environment claim.

 

But having a handbook is not without some risk. For example, a poorly drafted handbook can be worse than no handbook at all. Similarly problematic is a well-drafted but rarely or inconsistently enforced handbook. Moreover, using an inexpensive, canned handbook that has not been tailored to the needs of your company may cause you more trouble than it’s worth.

 

The key is obtaining a well-drafted handbook that is tailored to the specific needs of your company, training your management staff and supervisors prior to the introduction of your handbook to your entire workforce, and ensuring consistent enforcement of the policies contained therein. You can avoid the most common mistakes by following these rules:

 

1. Do not use a canned handbook or a handbook used by another company without consulting counsel;
2. Do not include a non-competition policy or an arbitration policy (these need to be in separate, written agreements);
3. Review other documents to avoid inconsistencies;
4. Train your supervisors before rolling out your handbook;
5. Ensure that you obtain a signed acknowledgment of receipt and understanding from each employee;
6. Ensure that each new hire is provided with the most recent version of the handbook;
7. Periodically review your handbook to ensure compliance with current laws;
8. Train your employees;
9. Follow your own policies; and
10. Carefully document a legitimate business reason if you must stray from policy for any reason.

 

Some specific policies you may want to consider for inclusion in your handbook include: a description of the employer-employee relationship (i.e., at-will employment); the company’s policies, rules, and regulations; employment classifications; equal employment opportunity policy; no harassment, discrimination or retaliation policy; guidelines for prevention of and handling complaints of harassment, discrimination, and retaliation; health and safety; benefits (insurance, vacation, holidays); leave policies, including, Family and Medical Leave (for employers with 50 or more employees), military leave, extended leave, bereavement leave, jury duty leave, and administrative leave; attendance; rules of conduct; customer and employee information privacy; internet, e-mail, voicemail, instant messaging, and blogging policy; cell phone usage; violence in the workplace; weapons policy; confidential information and files; drugs and alcohol in the workplace; inspection of property; bulletin boards; no distribution/no solicitation policy; hazard communication policy and procedure; working together union free; and complaint procedures.


This article is for general informational purposes only, is not for the purpose of providing legal advice, and does not establish an attorney-client relationship. You should consult with an attorney to obtain advice as to your particular issue or circumstances.

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suebell
Susan Bell

 

Cincy Chic: What exactly is Labor & Employment law?
Susan Bell, Cors & Bassett Attorney: Employment law deals with navigating all of the state and federal employment laws, ensuring that our clients are in compliance with those laws, ensuring that they have policies in place that are current and effective, and assisting them when an issue or dispute arises.

 

Cincy Chic: What types of issues does that encompass?
Bell: Those issues include discrimination (such as age, gender, race, national origin, disability, veteran status, genetic information, and in some areas, sexual orientation), wages, discipline, leave, and termination. Although traditional Labor work (dealing with issues covered by the NLRA) was more prevalent in the past, certain issues, such as card check, and social media, are bringing more of these issues into the forefront today. Many people are surprised that there are provisions of the NLRA that apply to all employers, and not just those with a union.

 

Cincy Chic: I know that Cors & Bassett’s primary focus is on the small-to-mid-sized businesses in the area. What types of Labor & Employment issues are most prevalent for these businesses?
Bell: We work diligently with our employer clients on ways to prevent litigation, such as ensuring that our clients are aware of and in compliance with all of the many state and federal employment laws. Most employment litigation is the result of a disgruntled employee or former employee bringing suit about perceived wrongful termination or discriminatory treatment in the workplace, so working proactively to prevent these types of complaints can be very beneficial. Other common areas of dispute involve wage issues under the FLSA and leave issues (FMLA and ELOA). We also represent our business clients in Workers Comp, unemployment compensation, and employee benefits matters.

 

Cincy Chic: We’ve all been issued an Employee Handbook at one point in our careers, how important to a company is it to have an Employee Handbook and how do they get started?
Bell: There are many advantages to having an employee handbook in place, and I would highly recommend it. Among other things, it confirms the at-will employment relationship with your employees. It sets the stage for consistent and uniform management practices and makes the company’s rules and policies clear to all of your employees. There is a great deal of information that employers are required by law to provide to their employees, and a handbook is a very efficient way to meet those obligations. In addition, every employer should have an equal employment and sexual harassment policy, including complaint procedures. Having such policies in place may be the company’s only defense to a hostile environment claim.

 

It is very important, however, to make sure that you are using a properly drafted, current handbook that has been prepared with your particular company in mind. Using an inexpensive, canned handbook may cause you more trouble than it is worth.

 

The first step is to contact an employment attorney to determine what policies should be included in your handbook.

 

Cincy Chic: We understand that the firm also has a long, rich history of assisting clients with traditional labor law issues, which I also understand is really a rare find in our Greater Cincinnati legal community. So, what types of issues has Cors & Bassett worked on?
Bell: Our labor practice started about 50 years ago. It was a major part of our labor and employment practice for many years until the employment laws opened up significant new claims and the labor unions lost much of their influence and membership. Over the years we have helped companies avoid unionization, we have negotiated labor agreements, we have arbitrated labor disputes, and we have tried election disputes and unfair labor practice charges before the NLRB and the Federal courts. As I said earlier, traditional labor law has been making a comeback in recent years.

 

Watch the exclusive webcast interview below as Bell shares more about her experience as well as the employment and labor law industry. To learn more about Cors & Bassett, visit www.corsbassett.com.

This is a special advertising supplement, paid for by Cors & Bassett.

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Wills vs. Trusts: Which is Better and Why?
As an attorney working in the estate planning field for the past 25 years, I usually get asked the very basic question: should I just do a simple will or is a trust better for my estate plan? The answer to this question is never just “yes”, never just “no”, and before the question can be answered, a detailed review of each client’s situation is necessary. In addition, before the question can be answered, a short review of what a will is (and isn’t) and what a trust is (and isn’t) is useful.

 

What is a will?
In its simplest form, a will is a written document signed by the testator (the person making out the will) and under Ohio law, witnessed by 2 individuals not related to the testator. The will gives direction as to who is to receive your property at the time of your death. The will also appoints an executor who is the person you provide with the authority to administer your estate after your death. In the event you have minor children, the will can also appoint guardians for your children. A will is revocable (can be changed) at any time prior to your death and only becomes effective at the time of your death. Court action is required to “probate” the will, which means to appoint the executor and/or guardian and to issue court orders directing the disposition of your property in the manner stated in your will. All probate court records are available to the public.

 

What is a trust?
In its simplest form, a trust is a written document that provides for both lifetime and after-death directions as to the management and distribution of your assets. During your lifetime, you act as your own trustee with full control over your assets and the trust document will provide for a successor trustee to manage the trust in the event of your death or disability. Court action is not required to appoint a successor trustee, to manage your property during your lifetime or after your death and none of your financial information ever becomes a public record, before or after your death.

 

Trust versus Will
Trusts have many advantages over wills but what can’t be overlooked is that trusts do involve more upfront cost. This is true simply because wills are far simpler and less time-consuming to draft. Trusts can save considerable expense and time after a person dies or becomes incapacitated that in nearly all situations more than makes up the added cost of the preparation of the trust. In addition to the cost involved, I like to ask 3 basic questions on the will versus trust issue:

 

  1. Do you have minor children? If you do, I typically recommend a trust for several reasons:
    1. Without a trust, any funds left to minor children must be placed into guardianship accounts for the benefit of your children. These funds can only be accessed by the guardian by presenting the court with a request to use funds and the court issuing an order allowing the use of the funds. This is true for any expense incurred by the guardian, no matter how reasonable it might seem. The guardian is also required to file an annual account with Probate Court summarizing all income and expenses.
    2. Funds held in guardianship accounts must be disbursed to the minor children at age 18, no matter how large the amount of those funds may be. If you have any desire to keep funds set aside for paying for your child’s college or just want to see that your child makes it on his or her own before getting an inheritance, trusts are the only realistic option.
    3. Funds held in guardianship accounts are subject to restrictions imposed by the Probate Court on permitted investments. Under Ohio law, guardianship funds can only be invested in CDs, money markets or other investments guaranteed not to lose principal. Stock and bond investments are not permitted.
  2. Do you have any children, grandchildren or dependents with special needs? If you have any individual who may inherit property from you who has special needs, i.e., is disabled, a trust is very appropriate. Many times, individuals with special needs receive government assistance in the form of Social Security Disability, Medicaid or other benefits. In the event those individuals receive an inheritance from you, the government benefits could be eliminated or reduced. Trusts can be structured such that any inheritance from you can still be used for your disabled child or grandchild’s benefit without jeopardizing any government benefits.
  3. Will your estate be subject to estate tax at the federal level? If the value of your estate exceeds the current threshold limit for the federal estate tax ($5,000,000 until December 31, 2012), the use of a trust with special estate tax planning provisions may be appropriate. The threshold level has changed frequently over the past several years and will change again at the end of this year to an as yet undetermined amount. Rumors have been circulating for figures anywhere between 1 million and 10 million but we will not have certainty on this until very late in 2012. My recommendation to clients has always been to worry about the family plan first, then look at the best way to structure a plan for tax planning. The right thing from the family perspective is the primary concern and a plan to avoid or minimize taxes can be structured to take into account most, if not all, family planning issues.

 

So what is best for you? I probably haven’t answered that question because as I said in the start of this article, the answer is not always “yes” and not always “no.” Your family and financial situation are the drivers of any decision in this area and what is right for one family will not be right for the next family. It is far beyond the scope of this article to address all the intricacies of wills and trusts, but I hope that this material gives you some information that allows you and your attorneys to make an educated decision on this important issue.

 


 

This article is for general informational purposes only, is not for the purpose of providing legal advice, and does not establish an attorney-client relationship. You should consult with an attorney to obtain advice as to your particular issue or circumstances. 530045.1

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