Category: Real Estate and Employment Blog

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  • As of September 19, 2017, state of Ohio through its Ohio Medical Marijuana Control Program requested
    applications to Operate Medical Marijuana Dispensaries. The plan involves issuing 60 initial
    provisional licenses.  If you are interested in learning more about Ohio’s medical marijuana dispensary
    application process, please contact Benjamin McDowell at Anthony Law at 614-340-0011.

    When the final application and application information is released, it will be available on
    www.medicalmarijuana.ohio.gov/dispensaries. Ohio adopted final rules on September 8, 2017
    and it is not known exactly when the final application will be released; but it is expected
    sometime in late October to early December, 2017.

    Once the application is final and released, a request for application period begins. From that
    date, there is a 45-day application preparation period and on the 46 th day, a ten-day application
    submission period begins. Applications cannot be submitted before or after the application
    submission period.

    If you are thinking about submitting an application for a Dispensary Operation License, here are
    some initial considerations:

    1. The fees are not yet established, but initial proposed fees are a $5,000.00 application fee,
      an $80,000.00 initial license fee, and an $80,000.00 biennial renewal fee.
    2. IRS Tax Code Section 280E, how will this impact your business if a license is approved?
    3. What business are you already conducting in the state of Ohio that lends credibility to your ability to operate a dispensary?
    4. How will you structure a dispensary business?
    5. Who is on your team?
      • The application requires financial disclosures from each owner, officer, and board
        member.
      • The application requires criminal background checks from each owner, officer
        and board member.
      • The application requires narratives from each owner, officer and board member
        regarding previous business experience.
    6. Where is the proposed location?
    7. How will you create a business plan with all of the necessary requirements?
    8. How will you create financial projections?
    9. Are you going to establish an advisory board? Who is appropriate to fill those roles?

    Ohio is initiating its medical marijuana program with heavy regulation and control. This is
    evident upon review of the application and operation process in Ohio’s Administrative Code
    Rules. If you are interested in learning more about Ohio’s medical marijuana dispensary
    application process, please contact Benjamin McDowell at Anthony Law at 614-340-0011.

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  • For a variety of reasons, businesses of all shapes and sizes have begun the process of going paperless. However, one stumbling block to this process presents itself when a document requires a signature. Typically, this requires printing the document, signing it yourself, faxing it to the other party, waiting for them to print, sign, and fax it themselves, and finally printing the completed signed document once again and filing it away in a cabinet likely never to be seen again. This process is often time consuming, cumbersome, and ultimately unnecessary.

    Yet, there is a better way. Electronic signatures have attempted to respond to the inefficiencies of the physical signature process, and in the process have become big business. DocuSign CMO Dustin Grosse has stated that the e-signing sector is on track to grow north of $5 billion by the end of the decade.<a href=”#_edn1″ name=”_ednref1″></a>

    While each system provider varies, generally speaking, the process remains largely the same. A document is uploaded to an online service, whether its Word, PDF, or an image, where it is tagged with special annotations at locations where signatures will eventually be placed.<a href=”#_edn2″ name=”_ednref2″></a> The service then sends the new marked up file to the specified recipients, who then “sign” it either with stock cursive fonts, or by manually drawing their signature with the mouse (or finger if using a tablet). When completed, the signed file is sent back to the original sender. No paper or filing required. As a result, e-contracts have soared in usage. As of 2013, EchoSign, another e-signature provider, was processing more than 1.5 million documents a month.<a href=”#_edn3″ name=”_ednref3″></a>

    A report compiled by AIIM White Paper using survey data from November of 2012 reveals important trends regarding the implementation of e-signatures.<a href=”#_edn4″ name=”_ednref4″></a> On return of investments, 81% of existing digital signature users have seen a payback within one 12-month budget cycle, and 25% saw a ROI in three months or less.<a href=”#_edn5″ name=”_ednref5″></a> The two biggest areas benefitted by implementation of digital signatures is the saving of staff time and the speeding up of the approval process.<a href=”#_edn6″ name=”_ednref6″></a> They also compiled a list of the main drivers behind implementing e-signature processes. Within 44% of all organizations, half or more of their processes are interrupted by the need to collect physical signatures with the average across all respondents to be 42% of all processes interrupted.<a href=”#_edn7″ name=”_ednref7″></a> On average, 3.1 days are added to most processes in order to collect physical signatures and 2.1 additional copies of paper are printed of each document in order to collect signatures. <a href=”#_edn8″ name=”_ednref8″></a>As of November of 2012, 35% of all respondent organizations had already implemented digital/electronic signatures with another 11% having plans to do so in the next 12 months<a href=”#_edn9″ name=”_ednref9″></a> Oddly enough, the second most resistant profession to adopting digital signatures are lawyers.<a href=”#_edn10″ name=”_ednref10″></a>

    As a result, e-signature systems have cut down on paper waste and has streamlined the process by reducing the time and overhead costs that occur when filing, printing, scanning, e-mailing or mailing documents that require a signature.<a href=”#_edn11″ name=”_ednref11″></a> E-signatures have also helped alleviate fears that paper documents may have been altered or modified after being signed and sent as they cannot be imitated by someone else and allow for automatic time-stamping of documents.<a href=”#_edn12″ name=”_ednref12″></a> The ability to ensure that the original document arrived and was processed via a recorded chain of activities helps ensure the integrity of the process by leaving a proven electronic trail showing the history of the actions taken by the sender and the recipient in the signature process.

    <u>E-Signatures and the Law</u>

    Despite lawyers being one of the most resistant professions to adopting e-signatures, they have become ubiquitous within the legal community whether it be within transactional documents, or documents filed with a court. The statutory provision covering electronic signatures in Ohio is found in the Uniform Electronic Transactions Act. <a href=”#_edn13″ name=”_ednref13″></a>The relevant statutory provision is found in Ohio Revised Code section 1306.06, which provides in pertinent part that any record, contract or signature may not be denied legal effect solely because it is in electronic form and that an electronic signature satisfies any and all laws that require a signature.<a href=”#_edn14″ name=”_ednref14″></a>

    In 2008, The Supreme Court of Ohio released standards to help clarify the usage of electronic signatures on documents with the courts.<a href=”#_edn15″ name=”_ednref15″></a> The Court outlines three categories where electronic signatures may be used when transacting with a court. The first category involves transactions where the record is electronically signed by someone else and transferred to the clerk. The second involves transactions in which court personnel, including judges and magistrates, electronically sign a record which is filed with the clerk. The third is when court personnel, typically the clerk, electronically signs a record which is sent to an outside recipient.<a href=”#_edn16″ name=”_ednref16″></a> As long as the electronic signature is used under the auspices of a local rule adopted in accordance with Sup. R. 27, they shall have the equivalent level of legal protection that is given to paper-based signatures.<a href=”#_edn17″ name=”_ednref17″></a> Within these guidelines, the Supreme Court also outlines five different methods for authenticating e-signatures, and the minimum authentication requirements for specific situations.<a href=”#_edn18″ name=”_ednref18″></a>

    Recent case law from the appellate level in Ohio has followed the Supreme Court’s lead. In 2010, an Ohio appellate court ruled on a matter involving a claim that the trial court’s usage of electronic signatures violated the defendant’s rights pursuant to precedent and the Criminal Rules of Procedure.<a href=”#_edn19″ name=”_ednref19″></a> The court held that “the use of the electronic signature by the judge constituted the attestation of a judicial act…and were valid under the law of this jurisdiction.”<a href=”#_edn20″ name=”_ednref20″></a> The precedent that as long as an electronic signature is used pursuant to a local rule then it is valid and enforceable was followed once again in 2014 by another Ohio appellate court.<a href=”#_edn21″ name=”_ednref21″></a> Likewise, nearly every Federal Circuit Court has upheld the validity of electronic signatures when they are used under the auspices of local rules or federal laws.<a href=”#_edn22″ name=”_ednref22″></a>

    With both legal precedent, and business strategy supporting the adoption of e-signatures, it seems that it will only be a matter of time before even more businesses began adopting them as a means of both reducing waste, saving time, and increasing profit.

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    &nbsp;

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  • Ohio recently passed legislation legalizing medical marijuana in varying forms. This legislation goes into effect on September 6, 2016. Along with a multitude of other legal issues surrounding this new legislation, employment law will be impacted in a big way.

    Since medical marijuana is by definition a medical treatment for a disease and is prescribed by a medical doctor there are potential American’s with Disabilities (ADA) issues. It would be illegal for employers to discriminate, and thus not hire an applicant, or fire a current employee, due to the underlying medical condition that leads to an individual obtaining a medical marijuana certification. Therefore, when an employer learns that an employee has a medical marijuana prescription the employer should be cautious moving forward.

    The law is still attempting to catch up in the area of medical marijuana and employment. Some state laws allow for the use medical marijuana, however, the ADA is a Federal statute, and marijuana is still illegal under Federal law. This leads to a complex legal question about whether the ADA can protect those who are use medical marijuana since it is technically an illegal controlled substance under Federal law.

    The way that an Employee Handbook addresses the issue of drugs in the workplace has a large impact on the rights of employers when dealing with a current employee who fails a drug test due to medical marijuana usage. Typically, handbooks will prohibit the use of “controlled substances” while at work, and prohibit employees from showing up to work under the influence of controlled substances. These handbook policies are commonly referred to as “drug free workplaces”. Employers do still have the right to enforce drug free workplace policies, which at this time appears to include termination for the use of marijuana, even medical marijuana. However, this will likely change change in the coming years as the law catches up with the new medical marijuana laws.

    The legalization of medical marijuana will also complicate the hiring process. In performing a pre-employment drug screening, an employer may learn that the applicant has a medical marijuana prescription. After learning that the applicant has a medical marijuana prescription employers will need to be careful of their steps moving forward. The employer may not make a decision not to hire the applicant based on the underlying medical condition that has led to the medical marijuana prescription. In gathering information verifying the medical marijuana prescription the employer should have strict procedures for dealing with the information about the underlying condition to ensure that they do not make a decision not to hire based on the specific medical condition. At this point in time it appears that employers are able to make the decision not to hire based on failure of the drug test, but this will likely change in coming years. In other words in the foreseeable future employers will not be allowed to discriminate against an employee who has failed a drug test as a result of medical marijuana usage.

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  • Although the Americans with Disabilities Act (“ADA”) has been around for some time, many employers are often unsure of their obligations toward the disabled employee as well as their responsibility to safeguard the disabled employee’s health information. Should other employees be told that a co-worker is suffering from Cancer? HIV? Alcoholism? All of these conditions are considered to be a disability under ADA.

     

    Generally, ADA forbids an employer from discriminating against a disabled employee. Discrimination includes failing to provide reasonable accommodations for any known physical or mental limitations of an otherwise qualified employee with a disability, absent a showing that the accommodation would impose an undue hardship on the operation of the business.

     

    A reasonable accommodation is any change in the work environment or the manner in which a job is usually performed that enables an individual with a disability to enjoy equal employment opportunities. However, the employer is not required to undertake reasonable accommodations that place an undue burden on the employer. For instance, an employee suffering from a disease such as cancer or HIV may need extended specialized treatment that is only available during normal business hours. In such an instance, the employer should reasonably accommodate the need of the disabled employee by giving the employee the necessary time off to undergo the necessary treatment. One unique situation is alcoholism. While employers are required to provide reasonable accommodations, such as allowing the employee to attend any necessary treatments, an employer does not have to accommodate intoxication in the workplace.

     

    Much of the confusion over the employer’s obligation stems from learning of a disability in the first place. An employer unfamiliar with ADA typically has legal questions regarding the disability information itself. Generally, the employer is required to keep any health information learned from the employee confidential. However, there are some exceptions to this rule. Certain persons may need to know of the disability to ensure that reasonable accommodations are being made for the disabled employee, such as supervisors and managers. Of course, there are other situations where the employer can disclose the medical information, such as to first-aid and safety personnel, should emergency treatment be required and government officials investigating compliance with ADA. The employer may otherwise use the confidential information and share it with a healthcare profession or other third party to determine and provide reasonable accommodations for the employee. However, the employer should seek to ensure that any third party also keeps the information confidential. Generally, heath information should not otherwise be disclosed to other employees.

     

    Ultimately, the employer must keep the essential purpose of ADA in mind. An employer should not fire, wrongly discipline, close off opportunities for advancement, or otherwise discriminate in any way against a disabled employee. Under ADA, discrimination includes failing to make reasonable accommodations for a disabled employee, unless the accommodation would place an undue hardship on the operation of the business.

     

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  • Social Media Passwords and Employment

    There have been cases of Employers asking for passwords to social media websites during interviews, this has been strictly scrutinized because it can lead to protected information being revealed, such as religious affiliations, family size, family obligations, and more. By asking for access to this information Employers are opening themselves up to discrimination lawsuits. Following an incident where a prison guard was required to provide his Facebook username and password during a reentry interview Maryland enacted legislation making it illegal for Employers to ask for social media passwords of job applicants and employees. Many other states are moving towards similar legislation, which can be tracked through the following link: http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx

    BMW pays $1.6 million Settlement for Background Check Policy Associated with Race

    In 2015 BMW agreed to pay a $1.6 million settlement and offer jobs to African American applicants to resolve a federal lawsuit and charges based on the company’s previous hiring guidelines that governed their use of criminal background checks. The EEOC sued BMW alleging that the criminal conviction background check policy lead to the “disproportionate exclusion” of African American applicants from job opportunities, and violated Title VII of the Civil Rights Act of 1964. This instance highlights the importance of creating a criminal background check policy that is both job related and consistent with business necessity. Allowing for variation in the policy between different job titles within the Employer’s company can help to show that detail put into the policy by considering differing job duties when looking at criminal background checks.

    Pepsi pays $3.13 million for Background Check Policy

    In 2012 Pepsi Beverages Company agreed, during the post-investigation conciliation process with the EEOC, to pay $3.13 million and provide training and job offers to those who were subjected to their prior criminal background check policy to resolve an EEOC investigation that alleged racial discrimination in Pepsi’s hiring process. The EEOC conducted an investigation and found that more than 300 African Americans were adversely impacted when Pepsi applied their criminal background check policy. Under their former policy, which lead to this investigation and subsequent $3.13 million payment, job applicants who had been arrested but not convicted were not hired for permanent jobs. The former policy also denied employment to applicants who had been arrested or convicted of certain minor offenses. Using arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964 when those arrest and convictions records are not relevant for the specific job.

    J.B. Hunt Transportation Settles Over Improper use of Unrelated Criminal Conviction

    In 2013 J.B. Hunt Transportation entered into a settlement after the EEOC brought a race discrimination charge against the employer. The EEOC alleged that the transportation company engaged in unlawful racial discrimination by rejecting an African American truck driver applicant because of a prior criminal conviction that was unrelated to the prospective job duties. This case highlights the importance of determining which convictions will be relevant to specific job duties to prevent claims of discrimination.