Earlier this month, the Ohio Court of Appeals recognized a
public policy wrongful discharge claim when a waitress was fired for objecting
to her employer’s failure to properly pay all unemployment taxes on her
account. House
v. Iacovelli, 2018-Ohio-443. “While the administrative appeal process [to
challenge the amount of awarded benefits] provides a viable mechanism to
challenge a determination of benefits, it fails to set forth a remedial scheme
for a situation such as this where an employee is terminated merely for
inquiring about why her pay did not reflect the amount she had earned.” The Court also found that failing to
recognize such a claim would chill public policy because employees would not
report such payroll failures if they could be fired for bringing them to the
employer’s attention.
According to the Court’s opinion, the plaintiff waitress alleged
in her complaint that she confronted the restaurant’s owner about her payroll
stubs underreporting her wages and tips.
He allegedly admitted that he had underreported her income and failed to
make all of the required contributions in violation of Ohio Revised Code
Chapter 4141. She “further alleged that
instead of addressing the issue, [he] accused [her] of creating “too much drama” and
terminated her employment.” Thereafter,
she alleged that he requested that she mislead ODFJS by claiming that she was
laid off for lack of work and he agreed to give her $150 every two weeks to
make up for the unemployment tax shortfall.
Even though the defendant failed to file a timely motion to
dismiss or summary judgment motion, the trial court dismissed the claim on the
eve of trial on the basis that the plaintiff failed to satisfy the jeopardy
element for public policy wrongful discharge claims. That trial court found that the sole remedy
under ORC 4141 was for the Attorney General to bring suit; no individual
remedies were created. The Court of
Appeals reversed on the grounds that the statutes “fail to adequately protect
society’s public policy interest in establishing and maintaining an unemployment
compensation program.”
The Supreme Court of Ohio has explained that analyzing the
jeopardy element of a public policy
wrongful termination action requires assessing whether prohibiting the action from
going forward would compromise the objectives of the public policy in
question. . . .
Thus,“[a]n analysis of the jeopardy element necessarily involves
inquiring into the existence of any alternative means of promoting the particular
public policy to be vindicated by the common-law wrongful discharge
claim.” . . .
The public policy expressed in a statute is not jeopardized by the
absence of a wrongful termination action when the aggrieved employee “has an
alternate means of vindicating his or her statutory rights[,] [] thereby
discouraging an employer from engaging in the unlawful conduct.” Id.
“Wiles made clear that the method to determine whether a plaintiff can
file statutory and public policy causes of action involves reviewing the
adequacy of the remedy, not ensuring the aggrieved party receives the greatest
recovery.” . . .
“[A] remedy is not inadequate merely because it does not allow for all avenues
of recovery.” Coon at ¶ 22.
While society’s interests may be protected by the Attorney
General’s intervention and the employee may have the right to file an
administrative appeal to challenge unemployment benefits that are awarded, the
statute fails to address any remedies for an employee when an employer refused
to comply with the statute. “[W]e emphasized in Coon that “the purpose of a remedy in a wrongful termination case is * * * to deter
the employer from violating the law and to place the employee in the position they would have been
had the employer not violated the law.” However, the statute “does not contain any provision
that would provide [the plaintiff] with a “meaningful opportunity” to return to
the position she occupied prior to the adverse employment action.” Therefore, the statutory remedies are
inadequate and the plaintiff has satisfied the jeopardy element of a public
policy wrongful discharge claim.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
