Showing posts with label wrongful discharge. Show all posts
Showing posts with label wrongful discharge. Show all posts

Friday, May 28, 2021

Yes, Karen, your boss really can fire you for being a Karen


Do you remember Amy Cooper? She was the woman who called police on a Black man (Christian Cooper, no relation) who crossed her path while she was walking her dog in Central Park. One day later, her employer, Franklin Templeton, fired her, explaining, "We do not tolerate racism of any kind at Franklin Templeton." One year late, she has filed suit against her former employer, claiming that she was wrongfully terminated based on the company's failure to investigate what actually happened in the park.

Through a spokesperson, Franklin Templeton denies any wrongdoing related to Cooper's firing. "We believe the circumstances of the situation speak for themselves and that the company responded appropriately. We will defend against these baseless claims." 

In other words, Christian Cooper's viral cell phone video speaks for itself. Franklin Templeton either fired Amy Cooper because it concluded that she's racist, because her actions brought the firm negative publicity, or both. Either way, I see no chance that Amy Cooper's lawsuit succeeds.

Monday, April 9, 2018

Cyclist fired for flipping off Presidential motorcade sues former employer


You may recall Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade, and lost her job after a photo she posted went viral.

Ms. Briskman is not taking her termination lying down. In what appears to be a deep-funded and well-orchestrated campaign, she has filed suit in Virginia state court against her ex-employer.


Tuesday, January 3, 2017

Why it doesn’t matter that Ohio’s concealed-carry law removed its discrimination protections


We are going to begin 2017 near where we brought 2016 to a close—gun-owner protections.

Shortly before the end of Ohio’s 131st legislative session, Governor Kasich signed into law Amended Substitute Senate Bill 199, which, among other provisions, creates certain rights for lawful handgun owners to store said handguns in their vehicles parked on the property of their employers. You can read the specifics here.

Wednesday, September 23, 2015

The difference between what is "legal" and what is "right"


In McGowan v. Medpace, an Ohio appellate court dismissed an ex-employee’s wrongful discharge lawsuit. The employee—a former executive director—claimed that she was fired in retaliation for reporting concerns about her predecessor’s prescription-writing practices, which she alleged constituted insurance fraud and compromised patient safety. The court, however, concluded that regardless whether the retaliation occurred, it did not permit her to pursue a lawsuit for wrongful discharge. According to the court, under Ohio law, to support a wrongful discharge claim one cannot rely on a public policy unless it imposed an affirmative duty on an employee to report a violation, prohibited an employer from retaliating against an employee who had reported a violation, or protected the public’s health and safety. The court concluded that none of Dr. McGowan’s alleged public policies met those criteria, and, therefore, she lost.

That’s the legal analysis. Some would say that the employer won on a technicality. I prefer to call it high-quality lawyering. Whatever your take, what is clear is that whether the retaliation occurred was irrelevant to the decision. 

Employers, do not read this case as a licence to retaliate. Instead, let it stand for a deeper, more meaningful lesson. Just because the law permits something does not make it right. Strive to be better than the law’s floor, if not because it is the right thing to do, then because this case could have just as easily gone another way with a different court or different panel of this court. Justice is fickle. Do right by your employees and, more often than not, everything else falls into place. Just because the law makes it legal doesn’t mean the law makes it right, right?

Wednesday, September 11, 2013

When you gotta go, you gotta go: The right to workplace bathroom breaks


Do you know that OSHA protects the right of employees to go to the bathroom? OSHA’s sanitation standard states:

Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.

The OSHA standard tells you everything you would ever want to know about workplace bathroom facilities, including the minimum required per number of employees. Thankfully, it also forbids employees from “consum[ing] food or beverages in a toilet room.” (just in case your employees like to snack while taking care of business).

It’s not enough that employers provide toilets; they also must provide access for employees to use them. According an April 6, 1998, Director’s memorandum to the OSHA Regional Administrators, this OSHA standard mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.” Another issues to keep in mind when dealing with bathroom breaks is that the ADA might require extended or more frequent breaks as a reasonable accommodation.

What do “reasonable on restrictions on access” look like? Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13) provides an answer. Plastipak terminated Mark Zwiebel, a production-line operator, for leaving his machine three times in one shift, which included once to use the bathroom.

Zwiebel claimed that his termination wrongfully violated the public policy embodied in OSHA’s restroom standard. The court of appeals disagreed:

While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.

Thus, the employee lost his wrongful discharge claim because his breaks unreasonably interfered with production. Going to the bathroom is one thing—abandoning one’s job is another.

Nevertheless, employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless an employee seems to abusing bathroom rights, or, like in Zwiebel, the breaks interfere with performance or production, let employees be.

Monday, May 20, 2013

Fired for suing an ex-employer? Court rejects public policy claim


Carcorp hired Barry Elam to work in its finance department. A few months into his employment with Carcorp, Elam sued his prior employer, Bob McDorman Chevrolet, claiming that it had wrongfully fired him in retaliation for his cooperating with an investigation by the Ohio Attorney General into fraudulent credit applications. A year later, Carcorp fired Elam.

Elam then sued Carcorp, claiming that it wrongfully fired him in retaliation for his lawsuit against his prior employer, in violation of Ohio’s public policy.

In Elam v. Carcorp, Inc. (4/23/13), the appellate court affirmed the trial court’s dismissal of Elam’s wrongful discharge claim.

For the uninitiated, some background on wrongful discharge in violation of public policy claims under Ohio law. These claims act as an exception to the presumption of at-will employment permitting a claim when an employee is discharged or disciplined for reasons that contravene a clear public policy. To establish a claim that an employer wrongfully discharged an employee in violation of public policy, the employee must demonstrate all of the following:

  1. A clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law.
  2. Dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy.
  3. Conduct related to the public policy motivated the plaintiff’s dismissal.
  4. The employer lacked overriding legitimate business justification for the dismissal.

After an extensive analysis of Elam’s claimed public policy—the Open Courts provision in the Ohio Constitution—the appellate court rejected Elam’s public policy claim, on the basis that “Elam did not articulate any clear public policy that his termination from employment violated.”

In the final analysis, Elam did not demonstrate the Open Courts provision represents a clear expression of legislative policy barring an employer from discharging an employee as a result of the employee’s lawsuit against a third party. To hold otherwise would expand the public policy inherent in the Open Courts provision beyond the provision's clear meaning and infringe upon the legislature's duty to make and articulate public policy determinations.

While academically interesting, this case raises a more interesting practical consideration. These “public policy” retaliation cases often hinge on the creativity of plaintiff’s counsel to find a legislative or constitutional hook on which to hang the alleged public policy, and the court’s willingness to approve of the creativity. Indeed, the more creative the public policy, the more unpredictable the outcome of potential litigation. For this reason, employers should treat all employees complaining about anything in the workplace as ticking time bombs, as if their complaints are protected by some law or another. If a court later rejects a public policy claim, all the better.

Monday, May 21, 2012

Can a poor performance review count as an “adverse action?”


For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute
”a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Traditionally, a negative performance review does not constitute an adverse employment action, unless “the evaluation has an adverse impact on an employee’s wages or salary.” Or does it?

In Goldfaden v. Wyeth Laboratories (5/14/12) [pdf], the Sixth Circuit concluded that a warning letter issued to an employee constituted an “adverse action” even though the employee quit her job before she could suffer any consequences from the warning:

She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been…. We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment….

This result is even more troubling because the same opinion affirmed summary judgment for the employer on Goldfaden’s constructive discharge claim. In other words, the warning letter was not so intolerable that it compelled Goldfaden to quit, but it nevertheless could rise to the level of an adverse employment action because it could, maybe, have resulted in a lower year-end bonus.

It’s cases like this one that make it so difficult (and often frustrating) to attempt to predict outcomes for clients.

Monday, April 23, 2012

As the public policy turns


Last summer, in Alexander v. Cleveland Clinic Foundation, the Cuyahoga County Court of Appeals held that a police officer, fired after several outbursts while working traffic control, could proceed to trial with his wrongful discharge claim. He claimed that because his termination jeopardized the state’s public policy in favor of police officers enforcing the law, he should have been able to pursue his public policy wrongful discharge claim.

Three months later, the Ohio Supreme Court decided Dohme v. Eurand America, holding that to support a wrongful discharge claim, a plaintiff must identify the specific federal or state constitutional provisions, statutes, regulations, or common law that support the public policy relied upon.

Following Dohme, the Ohio Supreme Court vacated the appellate court’s decision and set it back to the appellate court for a re-do.

Second verse, same as the first. In Alexander v. Cleveland Clinic Foundation II (4/19/12) [pdf], the same panel of the same appellate court again concluded that Alexander was entitled to proceed to trial on his public policy claim.

Pursuant to Dohme, the court considered whether Alexander had clearly supported his public policy argument with a specific statement of law from the federal or state constitution, statutes, administrative rules and regulations, or common law:

Alexander claimed that public policy dictates that police officers enforce the laws of the state of Ohio; thus, discharging a police officer for enforcing the laws “would jeopardize the public policy of wanting police officers to enforce Ohio laws.” … Alexander cited R.C. 1702.80(D) in support of his public policy argument. The statute … provides that … a qualified nonprofit corporation … police department … “shall preserve the peace, protect persons and property, enforce the laws of the state.” … [H]ere, Alexander cited to “a specific statement of law” that was drawn from R.C. 1702.80(D).

The takeaway for employers—Ohio or otherwise—hasn’t changed since I first reported on Alexander last year:

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 specific 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.

Wednesday, November 2, 2011

Do you know what an employment lawsuit costs?


My manifesto—the Employer’s Bill of Rights—continues to generate links (thanks Kris Dunn and Walter Olson) and comments. One commenter asked the following:

Most employment cases would take less than a week to try? If Defendants simply tried all these frivolous cases instead of spending 18 mos. paying lawyers to do discovery only to settle later wouldn’t these cases dry up?

The reason why businesses fear terminating employees is because wrongful termination lawsuits are so expensive to litigate. According to a recent article at CIO.com (h/t: i-Sight Blog), a company should expect to spend between $50,000 and $250,000 dollars defending a lawsuit brought by an ex-employee. In my experience, that number is pretty accurate.

I believe that every lawsuit should settle. The two key considerations are when and for how much.

The only way to survive as an employer, though, is to draw a reasonable line in the sand on settlement value for a case and stick to it. If you are dead in the water, then you are better off settling early and not spending hundreds of thousands of dollars paying your lawyers to fight a lost cause. At the other extreme, though, if the employee’s case is meritless (or frivolous, depending on your viewpoint), then why do want to spend a dime towards settlement? Settling those cases will only paint your business as an easy mark, spurring copycat claims by other employees. For this latter category of claims, this only settlement is a voluntary dismissal, or, at most, a nuisance value.

The responsibility to fairly value cases, though, falls on both sides of the table. If the employee will not come to your line, then you must litigate, all the way through trial if necessary. Otherwise, you will lose all credibility and your corporate coffers will become an ATM machine for every terminated employee.

Tuesday, September 20, 2011

Ohio Supreme Court clears up “clarity” element of wrongful discharge tort


Last summer, an Ohio appellate court concluded that retaliation against employees who raise concerns over fire safety violates a clear public policy generally favoring fire safety in the workplace. Last week, the Ohio Supreme Court took away the employee’s victory, and provides ammunition for employers to seek dismissal of vague and nebulous public policy claims.

Before we get to the specifics of Dohme v. Eurand Am., Inc. (9/15/11) [pdf], some background. In Ohio, the termination of an at-will employee usually does not give rise to an action for damages. If, however, a discharge that jeopardizes a clear public policy articulated in the Ohio or United States Constitutions, federal or state statutes, administrative rules and regulations, or common law may create a cause of action for wrongful discharge in violation of that public policy.

In Dohme, the plaintiff merely claimed that his termination “jeopardized workplace safety.” The appellate court saved his claim by articulating a public policy favoring workplace fire safety, supported by citations to various state and federal statutes and regulations. The Supreme Court correctly concluded that is not a court’s job to engage in a search and rescue for a public policy to support a wrongful termination claim:

As the plaintiff, Dohme has the obligation to specify the sources of law that support the public policy he relies upon in his claim. Because Dohme did not back up his assertion of a public policy of workplace safety in his summary judgment documents with specific sources of law, he has not articulated the clarity element with specificity. Unless the plaintiff asserts a public policy and identifies federal or state constitutional provisions, statutes, regulations, or common law that support the policy, a court … may not fill in the blanks on its own….

It’s a big deal whenever the Ohio Supreme Court issues an employment law decision. It only happens once or twice a year. This case, however, really is not that big of a deal. This case is more about the proper role of courts in litigation and less about the wrongful discharge tort. It sends a message to plaintiffs that it is not the role of courts to make sense of their claims for them.

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.

Thursday, June 9, 2011

Ohio recognizes public policy tort for workers compensation retaliation in limited circumstances


Ohio has a specific statute against workers’ compensation retaliation—R.C. 4123.90. It prohibits an employer from retaliating against an employee who files a claim, or institutes, pursues, or testifies in any proceeding under the workers’ compensation act.

In Bickers v. W. & S. Life Ins. Co. (2007), the Ohio Supreme Court concluded that an employee who is fired while receiving workers’ compensation benefits is limited to brining a retaliation claim under the statute, and cannot pursue a common law wrongful discharge cause of action. This distinction is significant, because the workers’ compensation retaliation statute has limited remedies—reinstatement, back pay, and reasonable attorneys fees. The remedies is a common law wrongful discharge claim, however, are unregulated, and include compensatory and punitive damages.

In Sutton v. Tomco Machining, Inc. (6/9/11) [pdf], the Ohio Supreme Court considered whether R.C. 4123.90 also precludes an injured employee who suffers retaliation before filing a workers’ compensation claim from filing a common law wrongful discharge claim.

The facts of the case are pretty remarkable. Within an hour of DeWayne Sutton’s report of a workplace back injury to Tomco’s president, and before he could file a workers’ compensation claim for the injury, the company fired him. The employer argued that Sutton did not have a remedy. It correctly argued that R.C. 4123.90 did not provide a remedy because he had not filed a workers’ compensation claim. It also argued that Bickers precluded the common law wrongful discharge claim.

The Court concluded that because Sutton did not have a remedy available under the statute, he could pursue his common law wrongful discharge claim:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits…. The General Assembly certainly did not intend to create the footrace …, which would effectively authorize retaliatory employment action and render any purported protection under the antiretaliation provision wholly illusory. Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims.

The Court, however, did not permit Sutton to seek the full panoply of tort remedies. Instead, it balanced the limited remedies of the Workers’ Compensation Act against right of employees to be free from retaliation:

The compromise established by the General Assembly must govern the relief available to employees, like Sutton, who suffer retaliatory employment action after an injury and before they have filed, instituted, or pursued a workers’ compensation claim, just as it governs the relief for employees who suffer retaliatory employment action after they have filed, instituted, or pursued a workers’ compensation claim. Accordingly, we hold that Ohio’s public policy as established by the legislature is to limit remedies for retaliatory employment actions against injured employees to those listed in R.C. 4123.90.

This case strikes the right balance. Even the most ardent employer-side advocate would have a hard time arguing for a loophole that would preclude any remedy for an employee retaliated against. By limiting the remedies to those set forth in the statute, the Court is protecting the balance created by the workers’ compensation system into which employers are required to buy.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Wednesday, June 1, 2011

Court upholds termination of employee caught using cell phone camera at work


As technology becomes smaller and more accessible, employers will be faced with new problems. For example, one would be hard-pressed to buy a mobile phone that lacks a camera. How, then, should employers address their almost increasing prevalence in the workplace? The answer is to have a policy and to consistently enforce it.

If you need convincing, consider the recent Ohio appellate decision in Strodtbeck v. Lake Hosp. Sys., Inc. (5/13/2011), in which a hospital fired an emergency department technician after he was caught using his cell phone’s camera to photograph a patient. The employee claimed he took the picture to document what he believed was the patient’s mistreatment, which he wanted to bring to the hospital’s attention. The hospital argued that it was against hospital policy for employees to use their own cameras in the workplace. The Ohio appellate court sided with the employer, concluding that there was no legal basis for a wrongful discharge claim and affirming the dismissal of the case.

After reading the Strodtbeck case, you might be tempted to say to yourself, “We’re not a hospital, so these issues don’t affect us.” Think again. There are lots of scenarios that can impact businesses. For example, cell phone cameras can be used to:

  • Copy trade secrets or other confidential information.
  • Document harassment or discrimination.
  • Harass co-workers with lewd or offensive photos.
  • Record safety issues.
  • Distract employees from the performance of their jobs.

Moreover, the ability of these mobile devices to readily connect with social networks like Facebook or twitter increases the risks posed by these tiny cameras.

Your have two regulatory options:

  1. An outright ban on mobile phones in the workplace.
  2. A ban on the taking of photographs in the workplace.

Whichever your choice, you should also ensure that your social media policy addresses the posting of photographs, so that all of your bases are covered. Come back tomorrow for more discussion of how your social media policy can (and should) address photographs, video, and employee likenesses.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Tuesday, December 7, 2010

Do you know? Wrongful terminations for attorney consultations


Because Ohio employees working without a contract are at-will, an employer does not need a reason—good, bad, or otherwise—for termination. Yet, do you know that an at-will employee who consults with an attorney may find himself or herself protected from termination? Ohio, like most states, prohibits employers from terminating employees in circumstances that jeopardize a clear and well-defined public policy. Ohio courts conclude that an employee’s consultation with an attorney is worthy of such protection.

Chapman v. Adia Servs., Inc., is the most oft cited case in support of this rule:

[W]e hold that it is repugnant to the public policy of this state for employers to terminate employees for exercising their right to consult a lawyer. The courthouse door must be open to the people of Ohio, and it is not ajar when citizens may be fired for entering.

Other cases have extended this protection to employees who threaten to consult with an attorney and to employees who inquire about an employer’s policy regarding employees who sue the employer.

Employers should treat employees who consult with an attorney or threaten to consult with an attorney the same as they would any employee who engages in any other legally protected activity—with care, diligence, and fairness.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Monday, August 23, 2010

Helping those who help themselves: Be wary of common law retaliation claims


Just because a specific statute does not provide a remedy to a terminated employee does not mean that the employee cannot pursue a claim. In fact, Ohio recognizes a wrongful discharge claim for just this situation. When an employee’s termination offends a clearly defined public policy, courts will permit that employee to pursue a claim for wrongful discharge.

Dohme v. Eurand America provides a good example. In that case, Eurand fired Dohme after he provided an on-site insurance inspector with computer printouts showing overdue fire alarm inspections. Two days late, Eurand fired him. Among other claims, Dohme asserted that his termination violated a public policy in favor of workplace safety. The appellate court agreed:

An employee who reports fire safety concerns to the employer’s insurance inspector, regardless of the employee’s intent in doing so, is protected from being fired solely for the sharing of the safety information. Eurand argues that Dohme’s claim must fail because Dohme did not report the safety issue to a governmental employee. We do not agree. It is the retaliatory action of the employer that triggers an action for violation of the public policy favoring workplace safety.

Regardless of whether a specific statute exists to protect an employee, courts will often find a way to protect someone when it is perceived that an employer retaliated. If it looks like you are firing someone “because of” some complaint the employee made, pause and give some serious thought to the decision before pulling the trigger.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Monday, January 4, 2010

Lessons from (a) Leach – retaliation for talking to an attorney is a no-no


One of big stories that broke while I was off last week was the firing of Texas Tech head football coach Mike Leach. The university initially suspended Leech after a player accused him of locking him in a closet following a concussion. The school later changed the suspension to a termination after Leach filed a lawsuit seeking a restraining order to allow him to coach in the team’s bowl game.

In Ohio, Texas Tech’s actions could lead to a wrongful discharge claim, provided that the employee is at-will. Ohio law does not allow an at-will employee to be fired solely for consulting an attorney. Ohio law also does not allow an employee to be fired for filing a lawsuit. While an at-will employee generally can be fired for any reason or no reason, an exception exists when the termination jeopardizes a clear public policy. Access to legal services and access to the courts are such public policies.

What does this mean for employers? Simply that you cannot terminate an employee who you suspect may be consulting with counsel. These employees are protected as if they had come to you directly with a complaint about harassment or discrimination, or engaged in any other protected activity.

Come back tomorrow as we take this question to the next level, and answer the question of what happens when an employee asks to have counsel present at a disciplinary or termination meeting.

Wednesday, March 4, 2009

How not to fire an employee


Today, I’m going to tell you a little story. It’s about a stay-at-home mom who works part-time from home. She’s worked for the same company for over a year, and performed well. Every three months, the employer would renew her tenure for another three-month period. Recently, the mom asked for and received time some time off to deal with a medical issue of one of her children. While she was out on leave, she received an email from her manager telling her that her position was being eliminated and that her services would no longer be needed.

The legal issues in this vignette are relatively easy to spot: ADA (based on associational disability), FMLA (if she worked enough hours for the company), and GINA (depending on the nature of her child’s medical condition and whether her employer is in possession of genetic information).

This story, though, raises a larger issue. All legal issues aside, is this employee more likely or less to sue following her termination? According to the Settle It Now Negotiation Blog, there are four main reasons why an employee might file a lawsuit:

  1. Feelings of unfair, insensitive treatment at the time of termination.
  2. Lack of notice of the termination.
  3. Certain groups – women and minorities - are especially likely to sue.
  4. Perception of poor on-the-job treatment.

Our story violates at least the first three of these rules.

This employer, however, made one key mistake that helps fan the flames of bad feelings and could lead to a lawsuit – communicating the termination by email. Email is cold and informal, and should never be used to fire an employee.

The moral of this story – in preventing lawsuits by terminated employees, how the employee is fired is as important, if not more important, that why the employee was fired.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Tuesday, May 13, 2008

Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract


In White v. Fabiniak, Wal-Mart fired Carla White for threatening to "slap the piss" out of a co-worker, Stephanie Jeppe. Prior to the termination, White had used Wal-Mart's Open Door Policy to complain to her supervisor that Jeppe had been threatening her.

White was an at-will employee of Wal-Mart. At the start of her employment, Wal-Mart provided her an employee handbook that contained, among other provisions, an Open Door Policy. That policy provided:

If you have an idea or a problem, you can talk to your supervisor about it without fear of retaliation. Problems may be resolved faster if you go to your immediate supervisor first. However, if you feel your supervisor is the source of the problem, or if the problem has not been addressed satisfactorily, you can go to any level of management in the Company. But remember, while the Open Door promises that you will be heard, it cannot promise that your request will be granted or that your opinion will prevail.

White claimed that the open door policy created an implied contract between her and Wal-Mart, and terminating for using the policy violated that contract. The court of appeals disagreed:

The policy provides an avenue an employee may use in the event he or she has a work related concern, idea, or grievance. Within the context of the policy, therefore, Wal-Mart admits it will not terminate or otherwise punish an employee for choosing to share his or her ideas or problems with management. Read plainly, this is neither an implied or express promise of continued employment. Rather, it is merely an assurance that an employee can utilize the policy without concern of unfair reprisals on behalf of management or the company at large. ...

[W]e hold the plain meaning of the open door policy assured an employee he or she would not be retaliated against for utilizing it as a means to air his or her grievances. This does not imply the policy guaranteed an employee continuous employment if, for example, he or she breached a separate policy set forth in the manual in the course of utilizing the open door policy. ...

Nothing in the open door policy states that an aggrieved employee who decides to use the policy may utilize or threaten to utilize vigilante tactics if a particular supervisor does not handle the grievance in a manner the employee demands. Quite the contrary, the policy provides that, while an employee will assuredly be heard, an employee's view or opinion regarding the resolution of a problem will not always prevail.

Appellant does not specifically allege Chuba refused to hear her complaint, nor did she provide any evidence that her termination was retaliatory in nature. Appellant acknowledges, and the record demonstrates, she was fired for threatening Jeppe in violation of the workplace violence policy. Nothing in the record indicates Wal-Mart acted inappropriately in terminating appellant on this basis.

This opinion, however, may not be as pro-employer as it seems. It does not say that the employee handbook cannot create a contract, but merely that it does not in this case because Wal-Mart terminated White because she violated its workplace violence policy. The court did not find that White had no legal claim, but that Wal-Mart had a good reason to fire her. Thus, this opinion leaves the door open to the possibility that an employee can make a breach of contract claim if the employer does not have good cause for the termination.

Although unclear from the opinion, it is safe to assume that the handbook contained an at-will disclosure, such as: "This handbook is not a contract, express or implied, and does not guarantee employment for any specific period of time. Although we hope that your employment relationship with us will be long term, you are at all times an at-will employee, which means that either you or the company may terminate this relationship at any time, for any reason, with or without cause or notice." If that is the case, I fail to see how any employee could complain that the handbook creates an implied contract that the employer can breach, even if the employer admitted it fired an employee for using a handbook provision such as the open door policy.

Unless handbook disclaimers are to be rendered meaningless, employees cannot be permitted to bring breach of contract claims based on an employer's failure to follow a policy in the handbook. The claim must be based on some other recognized legal right, such as statutory retaliation or some public policy separate and apart from the handbook language itself.

Wednesday, April 9, 2008

Butt painter settles wrongful discharge lawsuit


In the update that I know everyone's been waiting for, Stephen Murmer, the Virginia high school art teacher terminated after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush, has settled his wrongful discharge lawsuit on the eve of trial. [See Butt painter's lawsuit to go to trial].

You may be asking yourself, what was his claim worth? $65,000. Unreal. We can all sleep easier knowing justice has been served.

[Hat tip: Lowering the Bar]

Wednesday, April 2, 2008

Ohio court finds no public policy for opposing corporate accounting irregularities


One would think that in our post-Enron corporate environment, employees, even in non-public companies, would be free to oppose corporate accounting irregularities without fear of termination. Yet, in Schwenke v. Wayne-Dalton Corp., the Lorain County (Ohio) Court of Appeals ruled that an employee claiming he was terminated for that very reason had no claim.

Ronald Schwenke was the controller for Wayne-Dalton Corp., a privately held manufacturer of garage doors headquartered in Mt. Hope, Ohio. During Schwenke's employment he complained about certain inappropriate accounting procedures engaged in by Wayne-Dalton's President and its CFO, in addition to what he perceived as the misappropriation of corporate assets. His complaints fells on deaf ears, and he was simply told to "make it work," perform his duties as controller, and not question how the business was operated. When he refused to "make it work" he was fired. Schwenke claimed that his termination was in retaliation for his complaints, and that it violated Ohio's public policy against firing employees in retaliation for reporting inappropriate accounting procedures or misappropriation of corporate assets.

Schwenke did not claim protection under Ohio's whistleblower statute because he failed to follow the statute's very specific reporting requirements that one must follow to qualify as a protected whistleblower. Instead, he claimed there is "a public policy in support of not firing an employee, such as appellee, in retaliation for reporting inappropriate accounting procedures or misappropriation of corporate assets." The court of appeals disagreed:

[W]e find that appellee has failed to identify any source of public policy as the basis for his claims. Appellee ... did not identify any constitution, statute or regulation that might provide a basis for his claims. Nor did appellee cite or present the trial court with any legal authority in support of his argument that his termination violated public policy.

In other words, Schwenke lost not because a public policy does not exist, but because he failed to articulate one. I wonder if the result would have been different if Schwenke simply articulated the Sarbanes-Oxley Act, which establishes accountability standards for publicly traded companies, as the public policy supporting his claim.

The concurring opinion, however, goes further, and suggests that there is no public policy sufficient for protection:

Appellee has failed to identify any source of public policy as the basis for his claims. I believe Appellee's best argument is the fiduciary duty which exists between a corporation and its directors and its shareholders warrants recognition as a public policy exception to the at-will employment doctrine. I know of no case law, nor has Appellee identified any, which has recognized the breach of that fiduciary duty rises to the level of a matter of public policy. The fact no such case law exists does not preclude this Court from recognizing, and thereby creating, new common law. While the facts of this case suggest doing so may be equitable, I join my colleagues in refusing to do so....

While I agree the corporate management practices found to exist by the jury in this case demonstrate a breach of the fiduciary duty to the corporation's shareholders ... I do not feel such rises to the level of a great societal wrong. This case brought to mind the Enron scandal. Unlike Enron, no corporate officer or board of directors' member of Wayne-Dalton has been alleged, much less shown, to have committed a criminal offense. Unlike Enron, Wayne-Dalton is not involved in the supply of public utilities. Unlike Enron, Wayne-Dalton's corporate management practices cannot be said to have any impact on the general public health and safety. Wayne-Dalton "wrongs" as found by the jury are not "societal" in nature.

The Enron analogy is fallacious. Enron was a publicly traded company. If Wayne-Dalton was a public company, Schwenke could have had a statutory whistleblower claim under Sarbanes-Oxley. The existence of that statutory remedy, however, would most likely nullify his public policy wrongful discharge claim, under the holding of Leininger v. Pioneer National Latex.

Nevertheless, the Schwenke case sends the wrong message to Ohio's privately held companies -- that they can terminate corporate watchdogs without fear of retaliation liability. Employees have to be free to oppose corporate accounting irregularities, even in non-public companies. Sarbanes-Oxley should provide a sufficient public policy to support these claims against non-public companies. I hope it does in the next case of this ilk.