Tuesday, June 28, 2011

Public policy is in the eye of the beholder

Consider the following two wrongful discharge cases, both recently decided by different Ohio appellate courts, and think about which you believe presents a bigger risk for the employer:

  1. In Morris v. Dobbins Nursing Home (6/20/11), a nursing home aide claimed that she was illegally terminated because she reported certain unlawful activities at the home to a state investigator during a health department audit. 

  2. In Alexander v. Cleveland Clinic Foundation (6/16/11), a police officer claimed that the Cleveland Clinic wrongfully fired him after reports of several outbursts while working traffic control. In one incident, he struck a car that failed to yield at an intersection, and in another he yelled at bus driver to “learn how to f****** drive.”

The appellate courts decided both cases on the legal issue of whether the plaintiff presented a sufficiently clear public policy—manifested in a state or federal constitution, statute or administrative regulation, or in the common law—to support their respective wrongful discharge claims. Morris relied upon federal regulations that detail the safe operation of nursing homes; Alexander relied upon the requirement that police officers enforce state laws.

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy. The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.

Unpredictable, you say? How many of you thought that the abusive police officer had the better case? Scary, right?

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.