The Ohio Patrolmen's Benevolent Association (O.P.B.A)
The Risk No One Wants to Talk About
Are you going to run out of money?
Most investors perceive risk in terms of the dollar amount they will or have lost over a relatively short period. They also perceive future risk in terms of events they worry could occur, such as a stock market crash, Treasury yields soaring because of the federal debt, or a global war or catastrophe. It's easy to understand why: These risks are easy to identify and potentially quantify.
What is much tougher for us to wrap our heads around is risk from the standpoint of longevity. This is the possibility of outliving your savings. From a purely financial standpoint, it is the key definition of risk you should be most concerned with.
The good news is that most police officers are able to retire with a strong pension, but will that be enough? Also, DROP has been added into the picture to create a nice nest egg to be used to supplement your pension in retirement. When you add DROP to your deferred compensation or other retirement accounts you were able to save on your own, you could be in a good position to have your assets more than last your lifetime. However, excessive distributions and improper management of your funds can have a negative impact on accomplishing that important feat.
What are you doing to help ensure you have saved enough and managed your portfolio in a manner that provides an adequate level of income on an inflation-adjusted basis in retirement? The decisions that you make throughout your career—including what you save, how long you work, how you allocate your portfolio and whether or not you panic during times of market turbulence— could help ensure you do not outlive your assets. In many cases, having professional guidance can really help take the emotion out of investing during turbulent market times. Too many times we see people in retirement that have too much of their assets at risk, even though they may not need or desire the potential high returns they could get by being solely in the market.
Unfortunately, whether our money will last our lifetimes isn’t always top of mind. Our minds don't do well with big numbers that are far out in the future. We think in the short-term and we don't do well with big, uncertain events. We certainly don't like thinking about exactly how many years we'll spend in retirement before the grim reaper comes or what our medical expenses might be like. It's simply easier to focus on potential risks that are currently more identifiable.
Having a properly allocated, diversified retirement portfolio could help prevent you from outliving your assets. Do you need help in crunching the numbers based on your pension, living expenses, age and retirement assets? If so, feel free to give us a call so we can help you get a better feeling on the longevity of your money.
Lineweaver Financial Group • 9035 Sweet Valley Drive, Valley View, OH 44125
Securities offered through Sigma Financial Corporation, member FINRA/SIPC. Lineweaver Financial Group is independently owned and operated. Diversification does not guarantee against loss or ensure a profit; it is a method used to help manage risk.
The Case In Favor Of Shift Differential At The Bargaining Table
Late Fall and early Winter are “bargaining season” for most public sector employees. The reality is that a wise advocate (for either the employer or the union) will approach bargaining, not only through how his client sees it, but also through the prism of how a factfinder or a conciliator would analyze and reasonably determine the parties’ open issues. An even wiser advocate will recognize that there are fundamentally two basic types of neutrals.
UNDERSTAND YOUR NEUTRAL
Neutrals are human beings and like judges, juries, or sporting event officials, they have their own particular preconceived notions, biases, and inclinations. One can drive himself to lunacy trying to “predict” how a particular neutral will rule on a particular issue based on the neutral’s past rulings. Rather than engaging in such a frustrating exercise, it is far more beneficial to recognize that some neutrals are process-based neutrals and others are truly fact-based neutrals.
In this author’s opinion, process-based neutrals are primarily focused the process of the statutory impasse resolution procedure to obtain a contractual result that the parties can ultimately live with. These neutrals generally seek to drive the parties toward middle ground and focus on the concept of “acceptability” by the parties. During the factfinding process, the notion of acceptability is important for eventual purposes of ratifying the factfinding report; but the concept of acceptability is also important in the context of conciliation. Once a conciliator issues an award, the parties must live with that result. This could work out splendidly for one or both parties, or could result in significant undesirable strife in the labor-management relationship, depending on the nature of the issue and the effect of the conciliation result.
Fact-based neutrals tend to be less focused on acceptability and the results of unacceptability. They are generally more concerned with strong objective rationale which is based on quantifiable or thoughtfully studied evidence in order to reach the correct result, whatever that may be. As such, there is a greater likelihood for one party or another to “win big” or “lose big” with a fact-focused neutral, based on what the relevant evidence actually reveals.
Neither approach to the factfinding and conciliation process is entirely right or entirely wrong. One suspects that most neutrals would probably claim that they are concerned with both the process to achieve acceptability and strong factual rationale, but the reality is that each neutral has his own traits and it is important to understand what tends to motivate the neutral’s decision-making process.
SHIFT DIFFERENTIAL ANALYZED AS A BARGAINING ISSUE
Shift differential is an item in law enforcement bargaining that serves three potential purposes, depending on how one looks at the issue. First, it is a vehicle for additional compensation. Second, it is a way to monetarily incentivize an employee to seek a less desirable shift where there is a clear need for that work to be performed. Third, it is arguably a factually-justified attempt to make employees whole for the physical and lifestyle sacrifices that employees make when working night shifts.
The first two rationales may resonate with a process-based neutral in order to achieve overall acceptability by the parties. This is a way to achieve additional economic influx to a collective bargaining agreement in order to garner ratification from the union. It may end up being a desirable method of distributing the ultimate monetary value of a contract from the employer’s perspective because an employer may not be subjected to eventual liability for shift differential with others of the employer’s bargaining units, which are not 24-hour per day operations. We refer to this as immunizing the employer from “internal comparability” problems.
The first and second rationales may not achieve union victory with a fact-based neutral, but the third rationale might. In order to put together a convincing case in favor of achieving a shift differential with a fact-based neutral, one must present strong evidence, not merely the argument of “the next city over gets it, so we should too.” That is simply not a good argument for a neutral who is focused on the facts and seeking persuasive evidence.
So, here are the facts: a minority of law enforcement agencies in Ohio have some sort of shift differential system. In Cuyahoga County, the state’s most populous county, only 42% of police departments have a shift differential. For some reason grounded in decades of bargaining history, there seems to be even less of a likelihood for shift differential among county sheriff’s offices.
Based on the legitimate facts at hand, the number of police officers, sheriff’s deputies, corrections officers, and dispatchers who have shift differential should increase.
THE SCIENCE OF SHIFT WORK
For our purposes, “work” is that which one does for the benefit of an employer which he or she would otherwise not do but for the worker being adequately compensated. This begs the question, what is adequate compensation for working abnormal hours and how does one factually justify that compensation?
The human circadian rhythm is clearly designed for activity during the day and sleep at night. Police work, corrections work, and dispatch work, do not neatly fit into those biological requirements. That work must be performed to insure order in society, but at what physiological cost to the worker?
A study released in November of 2014 in the scholarly journal Occupational and Environmental Medicine suggests that years of working night shifts prematurely ages the human brain. The study was conducted by a team of researchers from the University of Swansea in Wales and the University of Toulouse in France. Approximately 3,200 participants were tracked over ten years. They were periodically assessed based on their memory, speed of thought, and wider cognitive abilities.
The study revealed that, while the human brain naturally declines as we age, working “antisocial shifts” accelerates this process. Those who worked more than 10 years of antisocial shift work had the same cognitive results as someone who was 6.5 years older. For example, someone who was 50 years old at the conclusion of the study and had worked more than 10 years of night shift work, had the cognitive abilities of someone who was actually 56.5 years old.
Dr. Philip Tucker, one of the researchers from the University of Swansea said, “It was quite a substantial decline in brain function, it is likely that when people [are] trying to undertake complex cognitive tasks…they might make more mistakes and slip-ups, maybe one in 100 makes a mistake with a very large consequence, but it’s hard to say how big a difference it would make in day-to-day life.”
The published conclusion of the study is that “Shift work chronically impairs cognition, with potentially important safety consequences not only for the individual concerned, but also for society.” There is some evidence that the negative effects of working night shifts can be reversed, but recovery of cognitive function only presents itself at least 5 years after one has ceased regular antisocial shift work.
FACTUAL NECESSITY FOR SHIFT DIFFERENTIAL
Based on these findings and conclusions in this published study, one can and should make the argument in favor of instituting a shift differential where one does not currently exist. It is scientifically proven that working abnormal shifts negatively impacts an employee’s cognitive abilities at a substantially greater rate than his counterpart performing the same work during the day.
This argument should heavily influence a fact-based neutral. To such a neutral, monetary gain should be implemented in order to help offset the marked difference in working conditions which result in long-term impact on night shift workers and should help even the effective disparity between night workers and their colleagues.
All who have been deeply involved with the process know that creating a contract is akin to making sausage; but sometimes there are proposals that are advanced and adopted simply because they are the right thing to do. A shift differential may very well be one of those contractual components.
 Gallagher, James. BBC News - Health, Shift work dulls your brain, (Nov. 3. 2014).
 Marquie, Jean-Claude; Tucker, Philip; Folkard, Simon; Gentil, Catherine; Ansiau, David. Occupational and Environmental Medicine. Chronic Effects of Shift Work on Cognition: Findings From the VISAT Longitudinal Study, (Published Nov. 3, 2014).
One of our Directors called the OPBA on a Friday afternoon asking to speak with one of the attorneys. The call was transferred to me. I listened as the officer told me that one of our members just shot and killed a perpetrator.
I verified his phone number and told him that I was going to my car and would call him back in a few minutes. OPBA Executive Director Tom Austin, was made aware of the incident. I told him I was going to the scene. He decided to respond as well. We started the 50 mile trip to the location of the shooting. I called the representative and we discussed the facts of the case. He told me that five officers from three different departments were involved in the chase and all were present at the time of the shooting. Two Departments are OPBA and the other was the Highway Patrol.
I immediately asked him to tell all officers on the scene to not speak to anyone until I arrived. I also asked him to make sure to instruct any officer to not speak to anyone about this incident whether they were involved or not. The last thing we need during an officer involved use of force is speculation and fellow officers talking about what they think they heard on the radio.
As we approached the area, the officer that shot the perpetrator and his OPBA Director asked us to meet them at the Police Station. As we arrived, they told us that the Department’s supervisors and the other agencies were all cooperating and understanding the stress level of the officers.
The Chief agreed to not ask any questions and told the officer he would be interviewed on a later date. The Department called the officers wife and invited her to come to the station. They would send a cruiser to pick her up or she could come on her own.
The Chief gave me full access to offices and privacy as I spoke with the officers. We all know the press will be at the department demanding the officer’s personnel file. I asked the Law Director if Executive Director Austin and I could review the personnel file of the officer. She agreed.
As we looked at the file, many items were discovered that should be redacted such as addresses, phone numbers, and dependant information. Fortunately, we were able to clear these up before the press arrived.
ORC 149.43 (A) lists twenty-nine exceptions to the general rule of disclosure of public records. Additionally, ORC 149.45 (A) (1) outlines internet exceptions and what must be redacted, truncated or encrypted. If it calls for a redaction, all the information is eliminated from the request. If the section provides for “truncated” information that would be, for example, redaction of all numbers in a social security number except the last four digits.
RC 149.45 (D) (4). RC 149.45(D)(1).Peace officers, corrections officers, fire fighters, EMT and other members of the law enforcement/public safety job may request that a public office other than a county auditor redact that requester’s address from any record made available to the general public on the internet that includes the requester’s residential and familial information.
In conclusion, information such as a beneficiary of employment benefits, including but not limited to life insurance benefits is not to be disclosed. The address of the actual personal residence, social security numbers and bank account information, residential telephone numbers, debit card, charge card or credit card numbers are also protected. Medical information and emergency contact telephone numbers, and participation in an employee assistance program are also protected.
The identity and amount of charitable or employment benefit deduction, unless the amount of the deduction is required by state or federal law (taxes) must be protected. (OAG 2000-021).
Be sure to contact us if you have any questions
Hauser v. City of Dayton: The Ohio Supreme Court Revisits Personal Liability for Supervisors
Personal liability is always a concern for law enforcement personnel. In addition to causes of action at common law, plaintiffs enjoy the protections of a myriad of state and federal statutes upon which claims can be made against political subdivisions and/or its employees. While such suits that are brought against law enforcement personnel are typically brought by outside citizens, they can pit officer against officer. In Hauser v. City of Dayton Police Dep’t, 2014 Ohio 3636, 2014 Ohio Lexis 2040 (2014), the Ohio Supreme Court addressed the issue of personal liability for managers and supervisors of political subdivisions upon claims made under R.C. 4112.02(A) of the state’s statute against employment discrimination. This section generally prohibits employers from discriminating against persons with respect to any matter related to employment. By a vote of four to three, the Court distinguished past precedent and held that managers and supervisors of political subdivisions are not subject to personal liability under such section.
The issue of personal liability for managers and supervisors under R.C. 4112.02(A) was previously addressed by the Ohio Supreme Court in the case of Genaro v. Central Transport, Inc. et al, 84 Ohio St. 3d 293, 703 N.E.2d 782 (1999). In that case, arising out of the private sector, the Court held that supervisors and managers may, in fact, be held personally liable for unlawful discriminatory acts committed by them in violation of R.C. Chapter 4112. The Court reasoned that such holding follows from the broad definitions of “employer” and “person” under the act. The term "employer" under R.C. 4112.01(A)(2) is defined as "any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer." Further, a "person" under the act is defined by R.C. 4112.01(A)(1) as including "one or more individuals, * * * any owner, lessor, assignor, * * * agent, [and] employee." The Court also reasoned that such result follows from consideration of R.C. 4112.08, which mandates that “this chapter  shall be construed liberally for the accomplishment of its purposes * * *.”
The Hauser case involves a claim of a Dayton police officer, Anita Hauser, against her department and Major E. Mitchell Davis. Among other claims, Hauser averred that the department and Davis discriminated against her on the basis of age and sex in violation of R.C. 4112.02(A). Specifically, Hauser alleged that the department and Davis took employment actions against her that they did not take against those who were not in her statutorily protected class by imposing certain employment conditions, withholding her wages, subjecting her to “frivolous” investigations, and denying her opportunities for career advancement.
At the trial and appellate court, Davis argued that he was entitled to summary judgment on the state discrimination claim on the basis of immunity. R.C. 2744.03(A)(6) provides that an employee of a political subdivision is immune from tort liability with three exceptions. At issue in Hauser is the R.C. 2744.03(A)(6)(c) exception, which removes immunity if “[c]ivil liability is expressly imposed upon the employee by a section of the Revised Code.” Citing Genaro and relying on such exception to immunity, the Second District concluded that “civil liability is expressly imposed upon managers or supervisors, such as Davis, under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A).” Hauser v. City of Dayton Police Dep’t., 2013-Ohio-11, 986 N.E.2d 523, ¶28 (2d Dist.).
The Ohio Supreme Court reversed the Second District by vote of four to three. Writing for the plurality, Justice French analogized the definition of employer in R.C. 4112.01 with the United States Supreme Court’s construction of the definition of employer under the National Labor Relations Act in Packard Motor Car Co v. Natl. Labor Relations Bd., 330 U.S. 485, 488, 67 St. Ct. 789, 91 L.Ed. 1040 (1947). In Packard, the Court explained that the definition of employer under the NLRA was to incorporate ‘the ancient maxim of the common law, respondeat superior, by which a principal is made liable for the tortious acts of his agent and the master for the wrongful acts of his servants.” Id. Since Ohio’s definition of employer is similar to that of the NLRA and respondeat superior liability does not simultaneously create an express cause of action against individual agents and employees of the employer, Justice French reasoned that R.C. 4112.01(A)(2) cannot be read to expressly impose liability on political subdivision employees. The decision also noted that this construction of R.C. 4112.01(A)(2) comported with almost every federal circuit in their interpretation of employer in the context of Title VII cases.
The dissenters argued that the Second District’s judgment should have been sustained by the broad definition of employer and the Court’s holding in Genaro. The plurality opinion acknowledges that it calls the Genaro majority’s reasoning into question, but distinguishes Genaro on the basis that Genaro did not squarely address the immunity exception in R.C. 2744.03(A)(6)(c), as such immunity does not apply to employees in the private sector. Further, the plurality opinion by dicta acknowledges that personal liability can apply to managers and supervisors under other sections of the law such as those that specify it unlawful for “any person” to aid or abet an unlawful discriminatory action. See e.g., R.C. 4117.02(J). For the dissenters, this is a distinction without a difference.
While it might seem evident that an employee is not an employer and therefore not subject to personal liability under the sections at issue in Hauser, the statute’s broad definition of employer clouded this question to the extent that a multitude of cases and years and years of litigation were necessary to find the answer. At the end of this road, the two decisions that survive, Genaro and Hauser, seemingly stand at odds with each other. The potential for personal liability, as evidenced by these cases, highlights the importance of a political subdivision’s separate duty under Ohio law to defend and indemnify its employees. While there are limitations to such duty, it provides needed security for employees in an unpredictable and potentially costly legal landscape.
Workers’ Compensation and On-duty Illness/Injury Leave
Most OPBA collective bargaining agreements have a negotiated provision that allows employees who are injured on the job or in the line of duty and are unable to work to continue on their employer’s payroll and benefits for a limited period of time. These provisions may be known as “On-duty Illness/Injury Leave,” “Injury On-Duty Leave,” “Wage Continuation” or some other title (referred to as IOD in this article) depending on each group’s CBA. I frequently receive questions from employees who are injured on the job about their rights. There is typically confusion about how these provisions work and what happens when they end. Of course, each employee’s potential benefits depend exclusively on the negotiated language and specific terms in their CBA. There are no civil service rules or state laws that require employers to continue your pay and benefits if you are injured on the job and unable to work (although employees may receive FMLA leave and may substitute their approved leaves of absence to receive pay). Employees must follow the specific guidelines of the CBA to qualify for IOD.
As a backdrop to the discussion of “IOD” provisions, employees should know that Ohio has a statutory insurance policy for injured workers called the Bureau of Workers’ Compensation (BWC). The BWC is a complex system made up of employers, managed care organizations (MCO), insurance companies, a State board and State bureaucracies, which will not be fully analyzed here. But it is important to know the basics to understand the interplay between the BWC and IOD provisions. Any employee injured at work, no matter how seemingly minor or whether life threatening, should file a claim for coverage under the BWC. Not all injuries will qualify and not all injury claims will receive coverage, but employees should document the injuries and apply.
According to the BWC, “within 28 days from the date your initial claim for benefits is filed, BWC will decide to allow or deny it. By responding to any inquiries from your MCO or BWC, you will quicken the decision-making process and the receipt of benefits. If you or your employer disagrees with our decision, either party can file an appeal with the Industrial Commission within 14 days. If [the BWC] allows your claim and you cannot return to work for eight or more days, [BWC] will pay a percentage of the wages you lose as a result of the allowed work-related injury.” In addition, the BWC will pay the medical claims as a result of the approved injury. So in the absence of an IOD provision in the CBA or if the IOD claim is denied by the employer, employees still have a statutory right to receive compensation for lost wages as a result of a BWC approved work-related injury.
An IOD claim is a separate right defined by the CBA and may require different qualifications than the BWC claim. Many employers will continue employees on their usual payroll system as a result of an on-duty injury which results in the employee being unable to continue to work. Employers will provide benefits for a limited period of time in order to avoid having to make claims against the BWC. The employer’s premiums or cost of paying into BWC will increase with each claim filed and the amount of each claim. For employees that sustain injuries for which they are likely to return to work within 60 or 90 days or less, it may be more cost effective for the employer to continue to pay the employee rather than require that employee to go on the BWC wage benefits. This is the reason why most IOD provisions have a limited period of coverage, usually 30 to 180 days.
Employees must read the IOD provision carefully to determine what is covered and what is not and when the employee must notify the employer of the claim. There may be a notice provision that requires the employee to notify the employer within so many hours or days of the injury and to describe the circumstances of the incident and the nature of the injury. Employees may be required to fill out a specific form. Failure to follow the CBA requirements may disqualify the employee from receiving IOD benefits. Also, some IOD provisions only cover “high risk” injuries, such as a result of an apprehension, training, motor vehicle accident with lights and sirens, or other injury sustained while performing law enforcement functions. These provisions may exclude non-law enforcement injuries such as a trip and fall, routine driving incidents, or simple mishaps. Further, some only provide wage continuation if the injury results in the employee being off-duty for more than 3, 5 or 7 days, otherwise the employee will simply use sick leave. Almost all require that the injury be approved through the BWC process even if the employee is not seeking BWC wage benefits. The employer may deny IOD benefits depending on the coverage provision and the circumstances of each case; however, the employee may file a grievance to contest the denial of the IOD coverage. Obviously, employees who have claims denied through the BWC will be required to file an appeal through the BWC process.
In any event that you do not have IOD benefits or the employer has denied IOD coverage or your covered period has elapsed, employees are always entitled to approved claims through the BWC. Even for severe, life-threatening or debilitating injuries, employees may receive the IOD benefits for the covered period and then will transition onto the BWC temporary or permanent total plan or seek disability benefits through their respective pension plan. An IOD provision is an additional negotiated benefit, not a substitute for the BWC process. Hopefully, an employee will be able to return to full duty within the covered period in order to avoid going off their employer’s payroll. However, even for non-covered claims or for long term illness/injuries that will extend beyond the IOD period, employees should consult with their BWC or disability attorney to seek options for work-related injuries.
 The OPBA does not provide legal representation for BWC claims.
- Knowing the Stakes of Protective Sweeps
- 2015 Membership Form
- Law Enforcement Bulletin October 2014
- 22nd Top Cops Award form
- Message from the Executive Director
- Planning for your Retirement
- Wives Behind the Badge
- After seizing a cell phone incident to arrest, get a warrant prior to searching it!
- Striving for Perfect Objectivity in the World of Police Promotions
- Collective Bargaining
- Two Federal Cases Revisited
- The SERB Wage Increase Breakdown
- MEETING ANNOUNCEMENT
- Miami Township Police is accepting resumes
- Job Announcement
- Understanding Annuities Life is confusing…and so are annuities!
- The Hopper Act: An Added Protection for Officer Safety
- CELL PHONE SEARCH AND SEIZURE ISSUES -- TWO IMPORTANT SUPREME COURT CASES TO WATCH IN THE WEEKS AHEAD
- IN RE CITY OF GREEN: SERB AGAIN TAKES ON THE PART-TIME QUESTION
- Education is Key in Managing Member Expectations