Here’s a survey of a few recent unemployment compensation
decisions. Last week, the Ohio Court of
Appeals reversed the denial of unemployment compensation to a claimant who
claimed that he resigned after complaining repeatedly about not being paid promised
production bonuses and discomfort with what he found to be unethical and
discriminatory sales practices. Barno v. Dir., Ohio Dept. of Job &
Family Servs., 2018-Ohio-1196.
In January, the Court reversed the denial of unemployment compensation
to a long-time employee who was fired for admittedly shoving a member because
she had been provoked and the employer mostly ignored her concerns about that member. Smoot
v. Dir., Ohio Dept. of Job & Family Servs.,
2018-Ohio-270. The claimants in both of these cases were
represented by the Cleveland Marshall Law School clinic. In the final case, the Court last month
upheld denial of unemployment compensation when the court staff attorney
resigned because he speculated that he was about to be fired and had never raised his concerns. Kelly
v. Stark Cty. Commrs., 2018-Ohio-950.
In Barno, the claimant made notes during
his job interview about the bonus structure and followed up several times about
his employer’s failure to pay him pursuant to that structure. He promoted water purification systems inside
Home Depot stores for his employer. He
was supposed to be paid for every lead he generated which resulted in an
in-home demonstration and which resulted in a sale. However, the Company never informed him when
his customers followed up with it.
Instead, he only found out when they returned to him to complain about
service. When he asked about the
non-payment of his bonus, he was told that they were looking into it. When he attempted to contact the Company
president, his call was not returned.
When he wrote his manager about it, he received no response. He also claimed to have been told to not
service customers with foreign accents, in certain zip codes and the
elderly. He also claimed that customers
complained to him that they never received promised discount cards and were
ignored when they tried to cancel the service.
While the company admitted during the hearing that they did not want to
sell to the elderly (because their children were likely to later complain),
they denied in broad terms having any other restrictions. The employer did not specifically deny the
allegations of racial and national origin discrimination. The employer also claimed during the hearing
the bonus structure was much different than alleged by the claimant and claimed
that he never seemed to understand it. The
hearing officer and Commission ruled in favor of the employer, but the Court
reversed.
The Court found that the only real “evidence” of the bonus
structure was the letter and notes provided by the claimant because the
employer’s “evidence” had been created only for the hearing. In other words, the only documentation of
the bonus structure that existed prior to the hearing was the claimant’s
documents. If the employer had ever
documented its bonus structure prior to the hearing (as every employer should
do), it might have won the hearing.
Instead, the Court found that the employee was justified in resigning his
employment when he was not being paid as promised when he was initially hired. Further, the employer’s general denial that it
had any other restrictions on sales (other than not selling to the elderly) was
found by the Court to be insufficient evidence to rebut the employee’s
allegations that he was specifically told to not sell to Russians, Asians, Indians,
and others with foreign accents, etc. The Court also found the employee’s testimony
credible that his repeated complaints were ignored and that customers had
complained to him about being ignored, etc.
Thus, the employee was justified in resigning his employment and entitled to receive unemployment compensation.
In Smoot, the
employee had worked as a housekeeper for 11 years for the YMCA. After a spotless disciplinary record, she
complained to her supervisor when a female member pushed her into a Christmas
tree. No action was taken to her
knowledge. A month later, the member
screamed at her when she asked her to move her car from a no-parking zone so
that a disabled member could park there.
Again, no action was taken to her knowledge after she reported the
incident to her manager. A month after
that, the member screamed again at the claimant because a maintenance man was
parked there while unloading supplies.
Later that same day, that same member elbowed her in the hallway and
told her to get out of the way. Again,
the employee complained and this time put her concerns about the member in
writing because no action had been taken on her prior complaints. Her employer warned the member that her
membership would be terminated if there were any further incidents. Nonetheless, the member again shoved the
claimant five months later and no action was taken after the employee
complained. Five months after that, the
member again provoked the employee and shoved her. This time, the employee shoved back and was
terminated the following day. The Commission denied unemployment compensation because the employee engaged in willful misconduct by not removing herself
from the situation instead of following
the employee and arguing with her prior to the physical altercation. The Court reversed and upheld compensation
for an employee who admittedly engaged in workplace violence:
[The claimant] gave the YMCA the opportunity to correct the
problem with the member, and the YMCA neglected to do so. The YMCA’s failure to act placed [the
employee] in a position where she was subjected to abusive conduct while
waiting for her employer to respond.
This isolated incident of [her] physical conduct with the member, when viewed
with [her] good record of job performance, the circumstances prior to the altercation,
and the lack of the employee handbook in the record, is insufficient evidence to
support the Review Commission’s determination that [she] was terminated for
just cause.
In Kelly, the claimant staff attorney told his judge that he would need to be off work due to back
surgery and claimed that the judge became very hostile. Upon his return to work following his
surgery, he was called into the judge’s chambers with the bailiff. Convinced that he was about to be fired, he
submitted his two-week notice of resignation before the judge said anything so
that he would not have a termination on his work record. Instead, he was told to go home because he
had never produced a medical release to return to work. Another staff attorney also testified that
he similarly resigned because of the judge’s open hostility. The Commission denied his claim for
unemployment compensation because the employee did not give the judge the
opportunity before his resignation to correct his concern with his working
conditions. The Court affirmed. While it sympathized that employee are not
always required to give prior notice of their concerns before resigning, in
this case he was not subjected to physical abuse and had never received any
disciplinary action. Accordingly, his
failure to complain about the judge’s conduct before submitting his resignation
was unreasonable.
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.
