In two recent state court appellate cases, employees in Ohio have struck out trying to expand the scope of public policy in that jurisdiction, with separate courts ruling in each that there was no unlawful termination.

First, let’s lay the groundwork.  In Ohio, to support a claim for wrongful discharge in violation of state public policy, an employee must establish four elements:

  1. Clarity: Clear public policy exists in a state or federal constitution, statute or administrative regulation, or at common law; 
  2. Jeopardy:  The public policy would be jeopardized by firing employees under the circumstances like those experienced by plaintiff; 
  3. Causation: The plaintiff’s dismissal was motivated by conduct related to the public policy; and
  4. Overriding Justification:  The employer lacked an overriding legitimate business justification for the plaintiff’s dismissal.

In the first case of the two we’re referring to, McMillan v. Global Freight Management, Inc., 2013 Ohio 1725 (9th Dist. Apr. 29, 2013), the Ninth Judicial District Court concluded that an employee terminated while receiving workers’ compensation did not have a common law public policy claim with respect to the remedies available to him.  Specifically, the Court held that while an employee terminated in retaliation after an on-the-job injury, but before filing, instituting or pursuing a workers’ compensation claim, can maintain a common law tort claim, his or her available remedies are limited to reinstatement and back pay, as set forth in O.R.C. 4123.90, and not additional – often more costly – damages for a public policy claim.

Meanwhile, in Elam v. Carcorp, Inc., 2013 Ohio 1635 (10th Dist. April 23, 2013), the Tenth Judicial District Court concluded that Ohio has no clear public policy preventing an employer from terminating an employee for filing a lawsuit against a third-party former employer.  In that case, Elam unsuccessfully argued that the “Open Courts” provision of Ohio’s Constitution was violated if he was denied meaningful access to the courts by his retaliatory discharge.

Wrongful discharge claims in violation of state public policy can be dangerous claims for an employer – usually because when they are raised, they speak to the allegation of a great unfairness done by an employer to an employee.  While the claims advanced in these cases both failed, they are a good reminder that employers always need to look at the termination decisions they make and objectively assess whether or not a jury of the employee’s peers in the community would be likely to view the discharge as a fair one under the circumstances.  While employers and their counsel tend to focus on the legality of a termination decision, a jury is more likely to focus – rightly or wrongly – on fairness.

Jami Suver focuses her practice in the area of labor and employment law.
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