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Legal Report March 2009


WORKPLACE SAFETY. A retailer that was sued after an employee was assaulted during a robbery is not liable for the employee’s injuries. According to an Ohio appellate court, the employer could not have predicted with certainty that the injury would occur.

The Monro Muffler and Brake store in Dayton, Ohio, was robbed on March 22, 2004, and then a month later on April 20. The store manager, Terry Toner, was present during both robberies. Only a few days later, on April 28, the store was robbed again. This time, one of the robbers struck Toner in the face.

After the assault, management changed store hours, installed a security system, and hired security guards. Toner filed a lawsuit against Monro Muffler, claiming that the company failed to protect its employees from a known threat. The company was liable, argued Toner, because it ignored the threat to employees posed by the robberies and only took steps after an employee was injured.

Monro requested summary judgment—a hearing based on the facts of a case without a trial—claiming that the prior robberies did not create a duty for the company to protect its employees. The Montgomery County (Ohio) Court of Common Pleas found in favor of Monro and granted the summary judgment. Toner appealed the decision.

The Court of Appeals for Montgomery County, Ohio, upheld the lower court’s decision, ruling that under state law, Toner had to prove three elements to prevail on his liability claim. He must prove that the employer knew about a danger to its business, that the employer knew with substantial certainty that an employee would be harmed by this danger, and that the employer continued to require employees to work despite this danger.

The court ruled that Toner lacked the evidence to prove the second point—that Monro knew an employee would be harmed. Because neither of the previous two robberies resulted in harm to an employee, Monro could have no certainty that injury would result in the future. (Toner v. Monro Muffler and Brake, Court of Appeals for Montgomery County, Ohio, No. 22227, 2008)

ADA. A company did not discriminate against an employee when it refused to let him perform a dangerous job while taking narcotics for pain. A federal appeals court ruled that the company did not violate the Americans with Disabilities Act (ADA) because it did not consider the employee incapable of performing other jobs.

In July 1999, James Daugherty was hired by Sajar Plastics, Inc., as a maintenance technician. The job required physical strength, frequent standing and walking, bending and kneeling, and climbing.

Daugherty began experiencing back pain in 2000. (He had sustained a back injury in the 1980s.) Daugherty began to take Oxycontin and Duragesic—both narcotics. Due to the disorientation and dizziness caused by the drugs, Daugherty was relieved of dangerous work for three months. In this time, Daugherty developed a tolerance for the drugs and could once again perform all of his regular duties.

However, even with the drug therapy, Daugherty experienced intermittent periods of pain, during which he was unable to work. Daugherty applied for, and was always granted, time off when these flareups occurred. During these times, Daugherty was away from work for periods ranging from two days to two weeks.

In November 2003, Daugherty requested up to two months off and presented a note from his doctor indicating that he would be able to return after his leave. There is some dispute as to the company’s response to this request. Though the time off was granted, Daugherty claimed that human resources warned him that his job would not be waiting for him if he took that much leave. The company disputes that this warning was given to Daugherty.

Shortly after Daugherty went on leave, Sajar began laying off workers. Daugherty had the least seniority in the department but was not laid off immediately because he was on medical leave. However, Daugherty was informed that he would be on layoff status the day he returned from leave. He was told that he was being laid off because of his lack of seniority. Daugherty did not dispute that the layoff was legitimate.

In February 2004, Sajar experienced an increase in orders and needed to hire a maintenance technician quickly. Sajar asked Daugherty to return to work but made the offer contingent on a health screening by a physician hired by the company.

The doctor deemed Daugherty unable to return for work because of his use of narcotics. The doctor noted that the drugs could mask the symptoms of re-injury or could cause an impairment that could lead to an accident. The doctor also based his recommendation on Sajar’s zero-tolerance drug-use policy, which applied to prescription narcotics as well as illegal drugs.

Sajar relayed the doctor’s findings to Daugherty but also told him that if he could reduce the amount of narcotics he was currently taking, the company would reconsider his return to work. Daugherty did not indicate that he would limit his use of the narcotics, and his employment was terminated. Daugherty filed a lawsuit against Sajar, claiming that he was fired because the company considered him disabled, a violation of the ADA.

The U.S. District Court for the Northern District of Ohio granted Sajar summary judgment, finding that the company did not discriminate against Daugherty. Daugherty appealed.

The U.S. Court of Appeals for the Sixth Circuit upheld the lower court’s decision. The court ruled that the company’s concern over Daugherty’s use of narcotics was the issue at hand, not his perceived disability. In the written opinion of the case, the court noted that “Sajar believed that Daugherty’s back condition and current medication levels precluded him from performing the dangerous machinery functions required of the particular job of maintenance technician at Sajar, but it did not regard him as unable to perform a broad class or range of jobs in the maintenance field or other categories of employment.” (Daugherty v. Sajar Plastics, Inc., U.S. Court of Appeals for the Sixth Circuit, No. 06-4608, 2008)


EMPLOYMENT DISCRIMINATION. A new law (P.L. 111-2) allows employees to act on a discriminatory practice at the time it occurs and also each time they are affected by the application of the decision or practice, such as each time an employee is paid, for example. The measure allows an employee to recover back pay for up to two years preceding the filing of a lawsuit in cases where the unlawful employment practices stated in the claim also occurred in the prior time period. The changes set out in the bill apply to the Americans with Disabilities Act as well as to discrimination law.

The law is in response to a U.S. Supreme Court ruling, Ledbetter v. Goodyear Tire and Rubber Co. In the case, a lawsuit filed by a female employee claiming that she was paid less than male employees was thrown out because it was filed more than 120 days after the act of discrimination—her hiring at reduced pay—occurred.

DATA PROTECTION. A bill (S. 139) introduced by Sen. Dianne Feinstein (D-CA) would require that companies notify consumers if their personally identifiable information is breached. Under the bill, companies that possess such data would be required to disclose any data breach that occurs.

A company is not required to disclose a breach if doing so would damage national security or jeopardize a law enforcement investigation. Companies may also be exempt from notification requirements if a risk assessment concludes that the unauthorized access caused no harm. The risk assessment must be sent to the U.S. Secret Service within 45 days of the breach.

Under the bill, a company can presume that no significant risk was caused by the theft of information that was encrypted or rendered harmless through redaction or other recognized industry methods.

Companies may notify consumers via telephone, mail, or e-mail. The notice must contain information on what type of information was accessed, a toll-free number for contacting the company, and toll-free numbers for contacting the major credit reporting agencies.

Fines can be up to $1,000 per day for each individual whose information has been breached. Companies can be charged a maximum of $1 million per violation.

S. 139 has no cosponsors and has been referred to the Senate Judiciary Committee.



BULLYING. A new Florida law (formerly H.B. 669) prohibits harassment, intimidation, and all forms of bullying, including cyberbullying, at public primary schools in the state. Under the law, schools must adopt an antibullying policy and procedures for dealing with complaints of bullying. All complaints must be investigated promptly and each incident must be included in reports to the state education department.


IMMUNITY. Virginia lawmakers have enacted a provision (formerly H.B. 403) that grants immunity to healthcare providers who deliver services during disasters. Barring gross negligence or willful misconduct, healthcare providers are immune from civil liability for any injury or wrongful death arising from care or from abandonment during a man-made or natural disaster.

This column should not be construed as legal or legislative advice.