The trial court erred
in upholding the Ohio Unemployment Compensation Review Commission's finding
that Appellant did not have just cause to quit her employment with Mission Essential
Personnel LLP given the uncontroverted evidence that she was pressured to
access classified military documents on WikiLeaks.org in contravention of the
National Industrial Security Program Operating Manual procedures and a directive
by Secretary of Defense Robert Gates, and in refusing to cooperate, was told
that she was being demoted from
her position as Corporate Director for MEP's National Industrial Security
Program.
As explained by the Court, employees who resign have a
higher burden of proving their entitlement to unemployment compensation of
proving that they had just cause to resign:
In order to collect unemployment benefits, an employee who
resigns from employment bears the burden of proving that he or she resigned for
just cause. R.C. 4141.29(D)(2)(a); . . .
The term "just cause," in this context, is defined as " 'that
which, to an ordinarily intelligent person, is a justifiable reason for doing
or not doing a particular act.' " . . . . A significant factor in assessing
whether an employee resigned with just cause is the employee's fault in creating
the situation that led to the resignation. . . . In cases in which an employee encounters
circumstances that might force resignation, the employee must first notify the
employer of problems prior to resigning or risk a finding of resignation
without just cause. The purpose of such notice is to provide the employer an
opportunity to resolve the conflict before the employee is forced to resign. . . . Notice to the employer, however, is not alone
enough to establish just cause; the employer must have a realistic opportunity
to correct the problem.
To support
her burden of just cause to resign, the claimant produce evidence of the DOD
directive on Wikileaks, a newspaper article about the response of various
military organizations to the directive, an extensive collection of emails
between the claimant and her manager about the dispute, and a company
memorandum reflecting its change in policy to confirm with the claimant’s interpretation
of the DOD directive. “This last
memorandum announces that the company may take disciplinary action up to and
including termination of employment for unauthorized access because of the risk
to future security clearance eligibility for the company and its employees.”
At the time, the claimant conferred with a government employee about
the issue and had been advised that the actions would jeopardize her security
clearance and that of her employer.
Apparently, her manager had directed her to not only access the
information, but also to scrub (i.e., alter it). (Emails were produced with this terminology
by one of her subordinates about what he had been asked to do). That government employee subsequently
retired, but testified during the unemployment hearing on behalf of the
claimant.
The determination of just cause necessarily turns upon
particular circumstances of employment. Here, appellant worked for an employer
undertaking sensitive national security work under particularly stringent
government guidelines designed to preserve and protect important confidential
information. When told to access the WikiLeaks.org site, appellant made her
case that this violated various security
protocols through numerous emails both to her immediate superior and other
individuals in her organization. Steadfast in her belief that not only her own
security clearance but that of her employer would be compromised, she explained
her position in repeated exchanges of correspondence with responsible
individuals, giving her superiors every opportunity to re-examine the
implications of their actions. She then consulted with Ms. Dugger, an informed
person in a responsible position with a relevant government agency, and
received confirmation of her belief that access to the WikiLeaks.org documents
was a potential, if not certain, breach of those security protocols expressed
in the NISPOM.
. . . . Beyond the
ethical questions raised by Mr. Peltier's demands, the perceived threat to
appellant's own security clearance alone would have given her just cause to
leave her employment rather than lose this credential, which would have
necessarily curtailed her ability to work in her field of experience and expertise.
In light of the uncontroverted evidence presented in the record of the course
of events leading to her resignation and the government regulatory context in
which it occurred, we find that the commission erred in denying appellant's
unemployment benefits on the basis that she did not have just cause for
resignation.
This was not on the only interesting unemployment case this
month. Last week, the Court of Appeals
affirmed the determination that the claimant was not entitled to unemployment
compensation because he was an independent contractor, not an employee. Henderson
v. Ohio Dept. of Job & Family Servs.,
2012-Ohio-5382. The issue focused on whether the
claimant’s general labor services for the employer constituted “employment”
under the applicable provision of the Ohio Revised Code.
R.C. 4141.01(B)(1) defines "employment" as
"service performed by an individual for remuneration under any contract of
hire, written or oral, express or implied, * * * unless it is shown to the
satisfaction of the director that such individual has been and will continue to
be free from direction or control over the performance of such service, both
under a contract of service and in fact."
As relevant here, R.C. 4141.01(B)(2)(k) includes as
employment "[c]onstruction services performed by any individual under a
construction contract * * * if the director determines that the employer for
whom services are performed has the right to direct or control the performance
of the services and that the individuals who perform the services receive
remuneration for the services performed." R.C. 4141.01(B)(2)(k) lists 20
factors to be considered in assessing direction or control, and provides that
the commission must presume that the employer has the right of direction and
control if ten or more of the factors apply. Those 20 factors are: (1) the
employer directs or controls the manner or method by which instructions are
given to the individual performing services, (2) the employer requires
particular training for the individual performing services, (3) services
performed by the individual are integrated into the regular functioning of the employer,
(4) the employer requires that services be provided by a particular individual,
(5) the employer hires, supervises or pays the wages of the individual
performing services, (6) a continuing relationship exists between the employer
and the individual performing services which contemplates continuing or
recurring work, even if not full-time work, (7) the employer requires the individual
to perform services during established hours, (8) the employer requires that
the individual performing services be devoted on a fulltime basis to the
business of the employer, (9) the employer requires the individual to perform
services on the employer's premises, (10) the employer requires the individual performing
services to follow the order of work established by the employer, (11) the employer
requires the individual performing services to make oral or written reports of progress,
(12) the employer makes payment to the individual for services on a regular basis,
such as hourly, weekly or monthly, (13) the employer pays expenses for the individual
performing services, (14) the employer furnishes the tools and materials for
use by the individual to perform services, (15) the individual performing
services has not invested in the
facilities used to perform services, (16) the individual performing services does
not realize a profit or suffer a loss as a result of the performance of the
service, (17) the individual performing services is not performing services for
more than two employers simultaneously, (18) the individual performing services
does not make the services available to the general public, (19) the employer
has a right to discharge the individual performing services, and (20) the
individual performing services has the right to end the individual's
relationship with the employer without incurring liability pursuant to an
employment contract or agreement.
The evidence,
however, established that he was paid – at his request -- on a 1099, not W-2
basis. He supplied most of his own
tools and was not provided with any training.
The parties disagreed about his ability to set his own work
schedule. He worked for a few other
companies on weekends and supplied proof of workers compensation coverage and
liability insurance. The company
claimed that he even turned down an offer of full employment with employee
benefits.
