Be Careful What You Ask For: Employees With Disabilities Lost Two Cases Last Week.

 In the vein of “be careful what you ask for,” two different courts last week ruled against employees with medical issues.  In the first case, an employee with a serious disability and who required a medical leave of absence admittedly asked to be laid off so that he could received enhanced unemployment compensation during COVID because the employer did not have a paid leave program.  Bair v. Crystal Glass, No. 24-1390 (6^th Cir. 12/3/24).    Although he had been told that he could not return to work without a medical release from his physician, he never provided one and, instead, sued under the ADA.  The court summarily ruled against him because he received the accommodation that he requested. 

In the second case, the employee’s FMLA approval and accommodation agreement for his sleep apnea and narcolepsy had expired years earlier and he had failed to update them with a medical statement from a practicing physician because his former physician had retired. Price v. Cellco Partnership, 2024-Ohio-5697.  When he requested July 2022 additional breaks to deal with stress and sleep deprivation, his request was denied because he could not support it with a physician’s statement.  He did not request any other accommodations or leave before resigning without notice in May 2023. “He also admitted that he did not take any other actions to avoid quitting on May 11, 2023.”  Indeed, he still had not found another physician as of the time of the unemployment hearing.   As a result, his claim for unemployment benefits was denied on the grounds that he quit his employment without a good reason.

The court rejected his argument that it would have been futile to ask for another reasonable accommodation:

[He] also asserts that asking whether alternative/comparable positions were available would have been futile because finding a position that could be performed while operating under only 30 minutes of nightly sleep would have been difficult or even impossible.  . . .  Nevertheless, the onus was on [him] to make the request. The record is clear—indeed, [he] concedes—that he did not. Thus, the Commission’s finding that [he] voluntarily quit his job without just cause is supported by competent, credible evidence, and he is not entitled to unemployment compensation benefits. . . .

In sum, as the trial court and the Commission found, an ordinarily intelligent person would have inquired whether comparable jobs that could accommodate his medical conditions were available (and then not being offered any such opportunities, if any) prior to quitting his position. In addition, an ordinarily intelligent person would have pursued a potential FMLA-related leave more diligently by taking additional steps to obtain the required medical documentation for such a leave (as [he] had done in the past). Competent, credible evidence shows that [he] did not do either—indeed, [his] own testimony readily shows this. Thus, competent, credible evidence shows Price voluntarily abandoned his job without just cause. Therefore, he is not entitled to unemployment compensation benefits.

 . . .

There is no evidence in the record that [the employer] was planning on discharging [him]. Indeed, [he] himself testified that no one from [the employer] told him he was going to be terminated; nor was he ever asked to resign in lieu of being discharged . . .

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 change or be 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.

Unemployment Compensation Denied When Physician Indicated Claimant Had No Work Restrictions But Would Know When to Leave Job

 Last week, a divided Franklin County Court of Appeals affirmed the denial of unemployment compensation to a claimant who had given notice of resignation and then a week later failed to return to work. Boynton v. Ohio Dept. of Job & Family Servs., 2022-Ohio-2597.   The Court found that the employee did not have “just cause” to resign her position because she had failed to first attempt to resolve any issues with her employer before submitting her resignation.   Moreover, her physician had stated that he had not placed her on work restrictions or advised her to quit her job, rendering her medical complaints irrelevant. 

According to the Court’s opinion, the claimant had worked as a cashier for a retail establishment for a few years.  Because of, among other things, lower back pain, her employer had accommodated all of her requests, including reducing her work hours and permitting her to rest one leg on a basket.   However, one day, she indicated that she was giving her two-week notice of resignation for several reasons, including to care for her ill fiancé, her low back pain and dissatisfaction with the employee rewards system.  After a disagreement with a co-worker a week later, however, she informed the manager about her emotional distress, and left work early.  She later told her manager that she would not be returning to finish her two-week notice because of COVID concerns. 

The Court noted that employees cannot receive unemployment compensation following a voluntary resignation unless they had just cause to resign

"Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act." Rider v. Dir., Ohio Dept. of Job & Family Servs., 10th Dist. No. 16AP-854, 2017-Ohio-8716, ¶ 9. Under this standard, " 'an employee is required to cooperate with the employer to resolve work-related problems. * * * If the employee does not cooperate or give the employer sufficient time to accommodate the employee's needs [and] concerns, that employee will usually not be found to have just cause if he or she quits.' " . . . " 'Essentially, an employee must notify the employer of the problem and request it be resolved, and thus give the employer an opportunity to solve the problem before the employee quits the job; those employees who do not provide such notice ordinarily will be deemed to quit without just cause, and, therefore, will not be entitled to unemployment benefits.' "

The claimant did not dispute that she failed to discuss her reasons for resignation with her employer before her resignation, except with respect to her medical ailments.   However, again, there was no evidence that she had ever indicated that the accommodations that she had requested and been provided were inadequate prior to her resignation (although there was evidence that the accommodations had not resolved her back pain issues).   She had provided with her unemployment application a statement from her treating physician that he had never placed her on work restrictions or advised her to resign, but that she would know when it was time to leave.

The ODJFS found that she lacked good cause to resign because she had not attempted to resolve with her employer any of these three issues before giving notice.  The Court’s majority found that there was adequate evidence in the record to support this conclusion. 

The dissent found that the physician’s comment that “she will know when it is time to not work anymore” satisfied her burden of proving good cause because it was clear no reasonable accommodation would be possible to permit her to continue working as a cashier.  The employer also had been on notice that her prior accommodations had not solved the issue with her back pain, but made no further suggestions.    Further, the dissent would not penalize her for leaving work prior to the completion of her two-week notice because she had been unwell and was legitimately concerned about COVID. 

Just Cause Policy Requires Some Fault Before Immediate Termination

Last month, the Franklin County Court of Appeals reversed an employer’s trial verdict on the discharge of an unclassified university employee on the grounds that the basis for his termination – that the university president believed that he had engaged in visa fraud based on a federal investigation which did not result in an indictment – did not constitute documented “just cause” based on applicable laws, rules and regulations. Fendley v. Wright State Univ., 2019-Ohio-1963.  The university’s policy required "documented just cause  as provided in applicable laws, rules or regulations.”  However, the belief of the university president was never documented and merely being under investigation for potential wrongdoing does not violate any law, rule or regulation.


According to the Court’s opinion, the plaintiff was an unclassified staff member for 11 years.  He and two other employees were administratively suspended in May with pay pending a federal and internal investigation into alleged visa fraud. After meeting with the federal investigators, the president believed that the plaintiff had engaged in visa fraud and decided to terminate his employment in August. The plaintiff was never indicted or charged with visa fraud.  Under university policy, an employee with 11 years of service could be terminated without cause with 9 months notice and could be immediately terminated “for documented just cause as provided in applicable laws, rules, and regulations or because of financial exigency.”  The trial court and magistrate determined that the University had just cause because of the ongoing federal investigation and the belief formed by the university president after meeting with federal investigators.  The Court of Appeals reversed.


The Court found that the policy did not permit the university to simply fire the employee for any lawful reason as would exist in employment at will.   The policy did not provide that the employee could be immediately terminated “as provided at law.”  The Court rejected the belief of the university president as a basis for the termination decision because it was not mentioned in either letter that suspended the plaintiff or in the letter terminating his employment.   Accordingly, the belief of the university president was not “documented” as required by the university policy.  It also refused to find the federal investigation into potential wrongdoing to be sufficient to constitute just cause because it was not indicative of any fault by the plaintiff.  No identified law, rule or regulation is violated by being under investigation for potential wrongdoing.   The university’s internal investigation likewise never documented any violation by plaintiff of any law, rule or regulation.


The dissent would have affirmed on the basis of the belief of the university president.

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.

Ohio Appeals Court Denies Unemployment to Employee Claiming Continued Harassment

Earlier this month, the Franklin County Court of Appeals unanimously affirmed the denial of unemployment compensation to an employee who resigned following her second complaint about her supervisor sexually harassing her.  Loughman v. Ohio Dept. of Pub. Safety, 2016-Ohio-1086.   Within a few months of being hired, the claimant complained about her supervisor sexually harassing her and he was disciplined following an investigation.   She returned to working for him and complained six months later that the harassment continued.  She was transferred into another position pending the investigation and offered four other possible positions in different sections (away from her former supervisor).   Plaintiff abruptly resigned her position a week later and filed for unemployment compensation on the grounds that she had been subjected to intolerable conditions when the harassment did not stop after her first complaint.  The Court  concluded that the employee’s resignation was unjustified under the circumstances because her second complaint was still under investigation and she had been immediately removed from the allegedly harassing situation once she made her second complaint.

In order to show that an employee was justified in resigning, the employee must first bring the intolerable situation to the employer’s attention in order to give the employer a realistic opportunity to cure the situation before the employee resigns.   If the employer fails to correct the situation, the employee may be justified in resigning and need not indefinitely subject herself to a hostile work environment.  In this case, the employee failed to explain how the employer’s discipline of the harassing supervisor following her initial complaint was insufficient.  She did not raise the issue again for six months and never alleged that the employer was aware before then that the harassment had continued.

She also could not show that the employer’s response to her second complaint was insufficient because she was immediately removed from the harassing situation, offered another position and began a second investigation (which had not yet concluded at the time she resigned).

The Court also refused to excuse the employee of the obligation to notify it of a medical condition which contributed to her resignation.

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.

Ohio Appeals Courts Rule in Favor of Unemployment Claims and Affirm Hearing Officers

Two unemployment decisions from September 30 illustrate the importance of convincing hearing officers in order to prevail or contest unemployment claims.  In one case, the hearing officer found that the employer’s witnesses and video evidence were not credible and awarded unemployment compensation where it appeared that the true reason that the claimant had been fired was because of his union activity instead of violating safety rules. Gen. Die Casters, Inc. v. Ohio Dept. of Jobs & Family Servs., 2015-Ohio-4033.   In the other case, a trucker was awarded unemployment compensation even though he resigned without advance notice and gave a completely different reason for his resignation in the uncontested hearing than he had in his questionnaire. Friedel v. Quota, 2015-Ohio-4060.  The trucker initially claimed that he quit because his employer left him stranded in the cold for several hours, but at the hearing produced evidence that he quit because his employer ordered him to violate federal hours of service regulations in order to make a delivery and the employer had not appeared at the hearing to dispute the new explanation.  The appeals court noted that the trial court erred in finding that the claimant had waived his right to assert at the hearing a different reason for his resignation by not raising it in his initial application for benefits.  Also, the court was required to affirm the hearing officer if there was any credible evidence in the record to support his decision.

In the first case, the claimant – who had worked there since 1979 --  was terminated for violating the employer’s safety rules by removing stuck objects from a machine without first locking it out. (Initially, I was impressed that the employer was enforcing its safety rules without first waiting for an injury – a practice upon which OSHA frowns).  The employer had no less than three witnesses to the safety violation.  However, the hearing officer did not find them credible.  First, the hearing officer found one witness to be inconsistent regarding his physical location and the series of events when he supposedly witnessed the claimant violate the lock-out procedures.  Second, he also found the shift manager to lack credibility because he asked a trainee about the lock-out procedures instead of the claimant and could not explain why he decided to inform management of the violation instead of confronting the claimant and stopping him from working in an allegedly unsafe manner.  Third, he found it more likely that management was motivated by the claimant’s prior NLRB complaints, history of union organizing at the plant and the recent decertification of the union.  Fourth, the hearing officer refused to give weight to the employer’s video evidence because the picture quality was so poor that he could not definitely identify the claimant and had doubts whether it captured the claimant on the day and machine in question.  Fifth, the claimant credibly testified that he had properly locked-out the machine before clearing it.  Finally, the claimant’s testimony was supported by another employee who worked on the machine immediately after him.  Once the hearing officer rules on credibility, that determination may not be reversed on appeal if there is any evidence in the record to support it.  The claimant and his co-worker provided credible testimony to support the hearing officer’s determination, so the employer’s appeal was rejected despite having video evidence.

In the second case, the claimant’s initial application for benefits was denied and he appealed, explaining that his employer refused to assist him when his truck broke down and left him sitting in freezing night-time temperatures for hours until his son-in-law came to help him.  In response, the employer contended that the claimant was responsible for minor repairs and had been given a debit card with a $500 limit in order to do so.   Again, unemployment compensation was denied. On appeal, the claimant testified to a new reason for his resignation at the unemployment hearing (in which the employer did not participate).  He contended that he had been driving since 9 a.m. when his truck broke down at 10:30 a.m. and he didn’t return home until 7 a.m.  Federal Motor Carrier Safety Administration regulations required that he not drive again for 34 hours, or that he at least get a 10 hour break.  49 C.F.R. § 395.3.  When he was called about a noon pick-up in Detroit, he explained that he was unavailable.  His employer arrived at his home and an argument ensured, during which he resigned.  He also produced his driver logs to support his position. Without contrary evidence in the record, benefits were awarded.  The UCBR denied the employer’s request for review and so the employer appealed to the common pleas court, which reversed the decision.

The trial court did not address the claimant’s hours of service explanation for his resignation, relying instead on his initial and unjustified explanation for his resignation.  ODJFS successfully argued that the trial court had improperly substituted his judgment for that of the hearing officer, which was in a better position to evaluate the claimant’s credibility.  By ignoring the claimant’s testimony about the federal hours of service rules, the court had also implicitly determined that this argument had been waived when it was no included in the claimant’s initial application for unemployment benefits and his initial administrative appeal.  However, there is no provision for waiver in the unemployment statute: “The unemployment compensation statutes do not provide that arguments not made prior to an administrative hearing are waived and, in fact, the court must consider the record transmitted by the UCRC.”    Moreover, prior court decisions have found employees to have just cause to resign when they are directed to violate the FMCSA hours of service rules.  

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.

Appeals Court: Employee Had Just Cause to Resign to Avoid Jeopardy to Security Clearance and Is Entitled to Unemployment Compensation; But Claimant Who Declined Employment Offer Was Not

The Franklin County Court of Appeals issued an interesting unemployment decision this week in which it reversed the UCBR and common pleas court in order to award unemployment compensation to the employee of a military contractor who resigned over a difference of opinion with her boss about reviewing the Wikileaks materials.  Turner v. Mission Essential Personnel LLC, 2012-Ohio-5470.   In that case, the employer had prevailed at every level before reaching the Court of Appeals and had not even entered an appearance or produced evidence at the evidentiary hearing.  The hearing offer described the issue as whether the claimant had just cause to resign her employment from a military contractor doing business in Iraq and Afghanistan based on her disagreement over being asked to access and review the classified materials leaked through Wikileaks for the names of company employees and contractors (in an effort to warn them of their disclosure).   She had contended that her manager’s direction violated directions from the DOD and Secretary Gates (that a single task force would conduct the review) and would have jeopardized the security clearance of herself and the company.  When he directed her subordinates to disregard her objection and demoted her, she resigned.   The company subsequently changed its policy to comply with her interpretation of DOD directives. The Court found the company’s subsequent actions were not relevant to whether she had just cause to resign.  However, upon closer review, it contended that she had just cause to resign in order to preserve her own security clearance because she had been asked to not only access the information, but to scrub (i.e., alter) it and this clearly violated DOD directives as testified by a retired government employee witness who had so advised the claimant at the time at issue.  “[T]he 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.”

 The claimant’s assignment of error reads as follows:

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 Court refused to consider the employer’s subsequent actions in conforming to the claimant’s interpretation because that information was not available to her at the time she resigned.  Instead, the Court focused on the uncontroverted evidence produced by the claimant about what her manager was asking her and her employees to do and the government employee’s testimony about how it violated the DOD directive to the extent that both the claimant and the company could have lost their security clearances.

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.

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 change or be 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.

Franklin County Court of Appeals Holds Employee Responsible for “Possible Hit” in Background Check

Last week, a unanimous Franklin County Court of Appeals affirmed the denial of unemployment compensation to an employee who was removed from his new job pending clarification of “a possible hit” on his criminal background check. Roberts Elec. Constr. Co., Inc. v. Quinichett, 2012-Ohio-1156. The employee was hired for and began working at a temporary job on the condition that he pass a required background check. Unfortunately, something that came up in the BCII database and he was removed from the job pending clarification. He wasn’t cleared for four weeks, but by then, the temporary job had been completed and he was not rehired. The Court compared his situation to that of a social worker who failed to obtain her LISW within fifteen months as required as a condition of the promotion.

The ODJFS found that the employee had been discharged for just cause for violating a rule of the employer that required a clear background check within a reasonable time after being hired. The UCBR reversed on the grounds that “a possible hit” on his BCII report which was eventually found not to be an impediment to his employment was not the fault of the employee. Unfortunately, there is nothing in the decision indicating what the “possible hit” was. Was it a mistake by BCII? Was it merely an arrest, which does not indicate any guilt or fault by the employee? Was it a conviction (which the employee should have anticipated would come up) and he was cleared because the particular crime (or age of offense) did not disqualify him from his particular job? We cannot tell this from the opinion.

The Common Pleas Court reversed on the grounds that clearing a background check within a reasonable period of time was analogous to obtaining a professional license within a certain period of time. Since the Supreme Court had previously held that it constituted just cause to terminate a social worker for failing to obtain a required LISW within fifteen months, the trial court concluded that the employee in this case was similarly at fault for failing to obtain the clear background check within a reasonable period of time for the temporary job.

I have to admit that I am confused because the social worker in Williams had failed to pass the required exam in the required time, whereas in the case, there is no indication that the employee could have anticipated that “a possible hit” which did not ultimately disqualify him from employment could be his fault – in that he has no control over how the records are reported by BCII. One can only wonder if he was given the opportunity to provide information to clear his record within a few days or demonstrate a mistake and he simply failed to do so. However, from the sparse facts provided in the opinion, it appears that the court instead concluded that it was not the employer’s fault (for hiring an employee before s/he passed a background check) and therefore, it should not have to pay unemployment in this case.

In any event, the Court of Appeals affirmed the common pleas court that the employee was not entitled to unemployment compensation for his failure to pass the background check for a month. Thus, employees who are hired before passing their background checks (a very bad idea in my humble opinion) are not entitled to unemployment compensation when they are removed for “possible hits” in the BCII report – even if the BCII report is incorrect or the “hit” turns out to be an offense which does not disqualify them from employment.

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 change or be 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.

Ohio Appeals Court Denies Unemployment Compensation To Supervisor Who Was Fired for Challenging His Managers About His Subordinates.

Last month, the Summit County Court of Appeals affirmed the denial of unemployment compensation to a manager who had been fired for insubordination in challenging his managers on behalf of his employees and for violating company policies and procedures. Curtis v. InfoCision Mgt Corp., 2008-Ohio-6434. Moreover, the employee had been ordered by the Unemployment Compensation Board of Review to repay $7,000 in unemployment compensation he had received before the employer’s appeal had been upheld.

As reported by the court, the fired manager had been taken through progressive discipline and was involved in three incidents of insubordination and/or policy violations before being fired. The first incident – on May 27, 2005 – took place after the supervisor’s manager questioned him about several of his employees leaving early for, and others returning late from, lunch. The supervisor “yelled across the room to [his manager] asking him what he was going to do about the employees returning late. In response to this, [the manager] asked [the supervisor] to step outside of the room and into the hallway where their conversation would not be overheard by other employees. [The supervisor] refused multiple requests to leave the room and speak with [the manager and] was issued a written warning for insubordination a few days later.

Later in October 2005, the supervisor sent an inappropriate email to another manager accusing him of lying and being unprofessional in the actions he took involving the termination of one of the supervisor’s most productive subordinates by a customer. The manager indicated that he only agreed to speak with the customer liason about the problem, but the supervisor insisted that he had promised to do more on behalf of the subordinate: "Let's be perfectly honest with each other. You DID indeed say last week that you were going to speak to [them] BOTH. I understand that we will just go on from here and [the employee] will be OK with that. But please do not lie straight to my face and tell me that you never said that you were going to talk to [them]. That is not professional or acceptable to me personally and/or morally."

Just a few days later, the supervisor then violated company policy by permitting his employees to call customers off a suspended call list because they otherwise had nothing to do. The supervisor was aware that the customer had suspended the particular program and had not yet been given a direction that the suspension had been lifted. He was then fired a few days later. The Court agreed with the UCBR that the supervisor had been fired with just cause and was not, therefore, eligible for unemployment compensation.

Insomniacs can read the decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-6434.pdf.

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 change or be 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.

Ohio Appeals Court: Arbitrator Exceeded Authority in Ignoring Parties’ Stipulation Removing Legal Issue from Consideration.

Today, the Summit County Court of Appeals vacated an arbitrator’s order reinstating a city health department employee who had been discharged for taking college classes when she was supposed to be on FMLA leave. City of Akron v. Civ. Serv. Personnel Assn., Inc., 2008-Ohio-4331. The court disagreed with the arbitrator’s rationale that the city’s pre-termination notice was constitutionally deficient because its focus seemed to announce a decision already made instead of giving her notice of her opportunity to present exculpatory evidence to preserve her employment. Instead, the court found that the arbitrator exceeded her authority by ignoring the parties' stipulation that the city had honored the employee's Loudermill rights by holding the pretermination hearing when the arbitrator ruled that the city had violated the employee's due process rights through a defective notice of termination.

According to the court’s decision, the employee “sought to attend college courses during regular working hours through the City’s “Academic Flexible Work Schedules” program, [but] withdrew her request to participate in the program . . . when management indicated that staffing shortages necessitated her working all of her regular hours. Instead, [the employee] submitted a request for Family Medical Leave Act (“FMLA”) leave time in order to care for her sick son. Health Department investigators later discovered [the employee] attending a college course during the hours that she had been approved to take her FMLA leave time.” Not surprisingly, “the City subsequently notified [the employee] that she was being recommended for discharge.” According to the City, a pretermination hearing was then held “consistent with Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532. The City further claims that [the employee’s union] sent the City a “Loudermill Response” after the hearing” on October 20, 2006. The union also filed a grievance challenging the employee’s termination. The City says that it considered all of this information and then City “finally notified [the employee] on October 23, 2006 that she was in fact being discharged, effective October 24, 2006.” The union sought arbitration on October 31, 2006.

During the March 2007 arbitration hearing, the parties “entered two stipulations before the arbitrator: (1) that the matter was properly before the arbitrator for resolution, and (2) that [the employee] had been given a Loudermill hearing.” Notwithstanding these stipulations, the arbitrator reinstated the employee in May 2007 because she determined that the City “failed to comply with Loudermill and the due process protections afforded to [the employee] as a civil servant. The arbitrator reasoned that the City’s notice of discharge, issued on October 11, 2006, clearly informed [the employee] that she was “hereby discharged” even though it preceded any response from [the union]. Therefore, the arbitrator determined that the City never gave [the employee] a pretermination opportunity to respond to the charges against her and terminated her without just cause.” When the city filed an appeal to vacate the arbitration decision, the trial court confirmed the arbitration award on the grounds that the parties’ stipulation raised factual matters which could not be reversed on appeal.

On appeal, the city argued that the arbitrator ignored the parties’ stipulation that the city had honored the employee’s Loudermill rights and the Court agreed. “An arbitrator also exceeds her authority, however, when she misinterprets or exceeds the conditions of a stipulation. Moreover, “Loudermill [only] requires a ‘classified civil service employee’ to be given a pretermination disciplinary hearing. . . . [S]uch hearing need not be elaborate, but must afford the employee the opportunity to have an explanation of the employer’s charges and evidence against [her], and an opportunity to present [her] side of the story.” The Court determined that the parties’ Loudermill stipulation removed a legal issue from the arbitrator’s consideration and was not merely a factual stipulation which was beyond the court’s jurisdiction to review on appeal. “By wholly ignoring the stipulation, the arbitrator went beyond the scope of the issue presented to her and exceeded her authority,” which is a matter determined by the contract -- and stipulations – entered into by the parties (i.e., the employer and the union).

Insomniacs can read the decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4331.pdf.

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 change or be 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.

Employee Who Quit Because Boss Frequently Yelled at Him and Others Is Awarded Unemployment Compensation

In late January, a divided Ohio Court of Appeals from Summit County affirmed the award of unemployment compensation to an employee who quit twelve days after being hired because his actual duties did not match his job description and because the boss frequently yelled at him and others over his protests. Ro-Mai Industries, Inc. v. Weinberg, 2008-Ohio-301 (1/30/08).

The employee accepted a position with the employer after interviewing with the owner. The employee, “who had extensive experience in sales,” testified that he was told that his position with the employer would involve sales work and would require him to be at the office only from approximately 8:00 a.m. to 5:00 p.m. The owner testified: "When I hired [the employee], I told him I'm probably the worst employer to ever work for[.] I'm difficult. I expect a lot. And I warned him in advance that I'm very difficult. *** [W]hen it comes to the business, I . . . I can yell. I did yell."

The employee began work on October 24, 2005. After a few days of work, however, he says that it became clear that “his actual duties differed from the job description that he received. He was not given any sales work and he often worked well over the nine hour shift that he was promised.” In addition, he discovered that the owner had a habit of yelling at the employees. Although the employee told the owner that he did not appreciate being treated in such a manner, the owner continued to yell.

On November 3, 2005, the employee informed the head of human resources that he intended to quit and was told: "[O]h, it[] gets worse. That's the way he is." However, before the employee left the office the owner sought him out, promised to stop yelling at him, and convinced him to stay. The employee returned to work the next day, but the owner resumed his habit of yelling at him. Accordingly, the employee quit the following day.

In opposing the unemployment claim, the employer argued that the employee voluntarily quit without just cause because he did not want to work more than eight hours a day, as a salaried employee sometimes must do, and he did not enjoy the type of work that the employer assigned him. It also argued that the employee was overly sensitive to the owner’s yelling, in that such yelling had never caused any other employee to quit. The dissent was persuaded by this argument and expressed concern that an employee could obtain unemployment compensation anytime he or she quit after being yelled at by a manager or supervisor. “No other . . . employee quit because of the yelling. This, therefore, obviates the hearing officer's determination that a reasonable person would quit in such a situation. While it may be uncomfortable for an employee to have an employer yell at him or her, if we were to take the reasoning of the hearing officer to its ultimate conclusion, there would be reasonable ground for quitting just because one employee simply raised his voice at another. I would find being yelled at, as a matter of law, is not just cause to qualify for unemployment benefits.”

The hearing officer determined that a reasonable person in the employee’s position would have quit his employment. Noting that the employer had misrepresented the employee’s job duties and the number of hours that he would be expected to work as a salaried employee, the hearing officer and the majority of the Court were also influenced because the “yelling was not a single, isolated incident.” Had it been a single, isolated incident, the employee would not have had just cause to resign. Rather, it “was a repetitive problem that [the employee] unsuccessfully tried to address with [the employer’s] human resources department prior to quitting. [The employee] even agreed to resume work the first time that he intended to quit because [the owner] asked him to stay and promised to stop yelling. He did not abandon his employment without warning, or leave with utter disregard for the good of the business.”

Insomniacs may read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-301.pdf.

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 change or be 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.