Ohio Supreme Court may be asked to clarify Coolidge

In addition to providing a good summary of the history of the public policy wrongful discharge tort in Ohio, Klopfenstein v. NK Parts Industries, Inc. also sets the stage for a potential battle in the Ohio Supreme Court over the proper statute of limitations for a claim under Coolidge v. Riverdale Local School Dist. Coolidge held that an employer cannot discharge an employee who is receiving temporary total disability workers' compensation benefits solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition. The Cuyahoga County Court of Appeals, in Brooks v. Qualchoice, held that Coolidge does not create a new public policy exception to the employment at-will doctrine, but instead illustrates conduct that is retaliatory under R.C. 4123.90 (the workers' comp anti-retaliation provision). In Klopfenstein, the Third District Court of Appeals disagreed, holding, "Coolidge creates an independent public policy exception to the employment at-will doctrine." These divergent holding have significant implications, because the two claims have vastly different statutes of limitations. An aggrieved employee has 4 years to file a public policy wrongful discharge claim, as compared to 180 days for a retaliation claim pursuant to R.C. 4123.90. The workers' comp retaliation statute also has strict notice requirements that a claimant must meet as a prerequisite to bringing suit, in addition to more restrictive damages.

Klopfenstein will not be the last word on this issue. Whether in an appeal from that case, or some future case, the Ohio Supreme Court will be called upon to clarify its Coolidge holding and definitively state the proper statute of limitations. In anticipation of that future battle, let me suggest that Klopfenstein was wrongly decided. R.C. 4123.90 states: "No employer shall discharge ... any employee because the employee filed a claim ... under the workers’ compensation act for an injury ... which occurred in the course of and arising out of his employment with that employer." If an employee is terminated because of workers' comp-related absences, that employee is being terminated because of the claim. Thus, the termination falls squarely within the coverage of R.C. 4123.90. It is the job of the legislature, and not the courts, to expand the statute of limitations for Coolidge claims if it sees fit to do so.

Small claims court needs reform

Did you know that a company cannot represent itself in an Ohio small claims court? An employee is free to go to small claims court and file any claim $3,000 or under against an employer, and the employer must hire an attorney to represent it at court. Even though a corporation is defined as a "person" under the law, and an individual can appear pro se, a company that tries to exercise the same right will be barred under the guise of the unauthorized practice of law. This rule needs to be fixed. Because the cost of defense often outweighs the cost of the claim, how is justice served if companies have little incentive to litigate? Often, however, companies want to challenge the claim, because at stake is the sanctity of a policy that the employer has spent time and money having drafted, implementing, and enforcing. Also, companies need to send the message that they will not roll over even for small claims brought by employees. So, what you are left with is a company that may not want to pay to fight the claim, and if they do pay to fight it, a pro se plaintiff that will be outmatched in court by having to face cross examination by a hired professional. This system is crying out for reform. Ohio law should be amended so that a company can appear in small claims court through a corporate officer and without an attorney. This amendment will allow the system to work as it is intended, so that small claims can actually be tried with small costs and small hassle.

Vicarious release held ineffective

Edwards v. Ohio Inst. of Cardiac Care is not earth shattering for what it says, but I write because of the novel argument made by the employer in trying to escape a jury verdict. It is well-settled Ohio law that supervisors and managers are jointly and severally liable with their employers for their own acts of discrimination. After suffering a $200,000 jury verdict on a sexual harassment claim, the employer in Edwards made the novel argument to the appellate court that the plaintiff's pretrial settlement with the accused supervisor extinguished the company's liability. While the Court seemed impressed with the creativity of the argument, it ultimately rejected it (the case was reversed on other grounds relating to the jury instructions). The Court reasoned that the supervisor is not liable simply as the employer's agent, but is liable because the statutory definition of "employer" in R.C. 4112.02(A)(2) includes individual supervisors and managers whose conduct violates the law. In other words, the supervisor and the company are co-employers. Thus, a settlement with one does not extinguish the liability of the other. In other words, if you want to obtain a release, you have to make sure you are a party to the agreement.

Sixth Circuit opens the floodgates to federal court

I have a confession to make. I am a procedure nerd. Civil Procedure was my favorite class in law school, and cases that raise interesting procedural issues still get me excited. Putting my personal oddities aside, I still think that Klepsky v. United Parcel Service, Inc. could prove to be one of the most important cases decided this year by the Sixth Circuit, as it greatly expands the class of employment cases that can be removed from state court to federal court.
Thomas Klepsky, a Cleveland-area driver for UPS and a union member, started his lawsuit in the Cuyahoga County Court of Common Pleas, asserting Ohio statutory and common law whistleblower claims. UPS removed the case to federal court on the grounds that the federal Labor Management Relations Act ("LMRA") completely preempted Klepsky's state-law claims. Over Klepsky's objection the district court kept jurisdiction and ultimately dismissed his claims on their merits. On appeal, the Sixth Circuit, concerned over the propriety of the federal courts' jurisdiction, requested that the parties be prepared to discuss the issue at oral argument.
By way of some background for those that do not often find themselves in federal court, there are two types of subject matter jurisdiction that permit a plaintiff to originally file an action in federal court, diversity jurisdiction (where none of the plaintiffs are citizens of the same state as any of the defendants, and the amount in controversy exceeds $75,000), and federal question jurisdiction (where a claim arises under the Constitution, laws, or treaties of the United States). If a plaintiff files such an action in state court, a defendant has the option to remove it to federal court. It is no secret that employers and their lawyers usually prefer to be in federal court, and removal is often the proper implement to get there.
Typically, the availability of a defense under a federal law (such as preemption) is not enough to support removal to federal court, and a plaintiff can avoid a federal forum by pleading only state law claims and suing at least one non-diverse defendant. However, in limited circumstances, where a federal law completely preempts state law on a relevant subject matter (such as ERISA, or, as in this case, the LMRA where a claim requires the interpretation of a collective bargaining agreement), removal is proper despite the lack of a federal claim in the complaint.
Consistent with precedent, the Sixth Circuit found that Klepsky's state law causes of action did not support preemption. However, the Court, in a novel turn, held that one of the remedies pleaded by Klepsky, reinstatement, supported complete preemption and permitted removal:

We find that this single request is enough to support preemption here, as it would require interpretation of the terms of the CBA, and implicates a right created under the CBA.... Even if he does not explicitly rely on terms of the CBA pertaining to reinstatement, his request for reinstatement would, at a minimum, seem to implicate such rights and require interpretation of the CBA. For this reason, we find that preemption exists under the LMRA, and that removal based on federal jurisdiction was proper here.

Thus, because the complaint contained a boilerplate request for reinstatement, which would require an interpretation of the collective bargaining agreement (via application of seniority clauses, etc.), removal was proper.
Ignoring whether this case was decided rightly or wrongly, it nevertheless has serious implication for the availability of a federal forum to decide state law claims. Plaintiffs who are union employees will now have a difficult time defeating a removal petition. Clearly, any unionized plaintiff who prays for reinstatement will be subject to having his or her complaint removed from state court. I will be keeping a close eye on cases in this Circuit to see if Klepsky is applied to prayers for front pay (the flip side of reinstatement), prayers to be made whole, or catch-all prayers under which a court could reinstate. My prediction is that this decision will prove to a blessing to employers, who often go to great lengths to get into federal court, a curse to employees, who often try to avoid federal court like the plague, and a potential docket clogging disaster to the district courts, who will most likely see their already heavy caseloads become that much busier.