Monday, June 8, 2020

Coronavirus Update 6–8–2020: “I was terminated for refusing to wear a ‘Trump 2020’ face mask."

Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee's nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear "Trump 2020" masks.

Worse, it's firing employee who refuse. 

Or at least that's what Kris Hauser, a former waitress of the restaurant, claimed happened to her in her viral Facebook post describing her termination.

The owner then approached me again and stated I needed to wear my Trump 2020 mask. I responded and told him I would wear it, but I would wear it inside out (which a majority of employees had been doing already for the days prior).

The owner, Scott, told me "No, you will wear it with Trump 2020 facing out for people to see."

I told him I would not do this and he said that I needed to leave. 

Your first inclination might be to say, "Jon, Ohio, like every other state besides Montana, is an at-will state, meaning that an employer can fire any employee for any reason, good or bad. And just last Thursday you told us that there are only a few states that ban political opinion discrimination, and Ohio isn't one of them. So while many will feel that Kris Hauser's termination is morally and ethically reprehensible, I don't see anything unlawful about it." 

While Ohio is an at-will state, it recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean? I'll let the Ohio Supreme Court explain:

In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law ("the clarity element"), (2) that dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy ("the jeopardy element"), (3) the plaintiff's dismissal was motivated by conduct related to the public policy ("the causation element"), and (4) the employer lacked an overriding legitimate business justification for the dismissal ("the overriding-justification element").

In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.

In this case, Ohio has a clear public policy against employers influencing employees' political opinions—Ohio Revised Code section 3599.05, which criminalizes employers that makes expressed or implied threats "intended to influence the political opinions or votes of his or its employees." That's exactly what The Village Inn did in imposing its "Trump 2020" mask requirement under threat of termination. And it's not too far off the mark from Kunkle v. Q-Mark, Inc. (S.D. Ohio 6/28/13), which refused to dismiss a public policy claim based on section 3599.05, after the employer allegedly threatened employees with termination if President Obama won reelection, and allegedly fired the plaintiff after she stated she voted a "straight democratic ticket."

I've never been shy about calling out an employer who has wronged an employee. The Village Inn has wronged Kris Hauser. The internet has already spoken. I hope Ms. Hauser finds a lawyer to take her case and the courts have their say as well.