NOT SO FAST MY FRIEND – OHIO LIMITS EMPLOYEE BREACH OF PUBLIC POLICY CLAIMS IN DOHME V. EURAND AMERICA, INC.

Historically, Ohio courts have recognized breaches of public policy as an exception to the employment-at-will doctrine. To make such a claim, an employee must assert and prove a clear public policy based in state or federal constitutions, a statute or regulations, or common law.  In its recent decision in Dohme v. Eurand Am., Inc., the Ohio Supreme Court restricted the availability of wrongful discharge claims premised on breaches of public policy.  This most recent decision provides employers with another tool in their defense arsenal against such claims.

In Dohme, the company alerted its employees by e-mail of an insurance adjuster’s inspection and designated certain employees to have contact with the adjuster.  The facilities administrator was not one of the designated employees.  Notwithstanding the e-mail, the facilities administrator told the adjuster that “he might want to find out what happened with” a fire inspection report allegedly removed from the company’s computer system.  Upon discovering the facilities administrator’s communication with the adjuster, the company discharged the employee for insubordination.  The employee sued the company.

In his lawsuit, the employee claimed that his discharge violated a clear public policy favoring fire safety in the workplace.  The employee, however, failed to identify or cite a specific provision of the law on which he based his public policy wrongful discharge claim.  The trial court found for the employer.  The appellate court, in reversing the trial court, attempted to fill in the gap created by the employee’s claim, providing references to potentially implicated laws, noting that “[t]here may be valid reasons for a plaintiff’s failure to identify and assert a specific public policy or a specific source for that public policy.” 

The Ohio Supreme Court concluded, however, that the employee’s claim failed because the complaint did not “articulate, by citation to its source, a specific public policy that [the company] violated when it discharged him.”  In so doing, the Court rejected not only the employee’s failure to cite a specific public policy, but the appellate court’s attempt to create one for him.  As a result, the Supreme Court concluded that the company was entitled to judgment in its favor on the public policy claim.

This decision should aid employers who must refute nebulous public policy claims.  First, the decision requires plaintiff-employees to specifically identify the legal basis for the alleged public policy in their complaint or face dismissal.  Second, by being required to specify the basis for the public policy claim, the decision better positions employers to evaluate the availability of an adequate statutory remedy in which case there is no basis for a public policy claim in the first place.  Finally, the decision affirms that the employment-at-will doctrine in Ohio is alive and well.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
 
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