Ohio Court of Appeals Finds Minimal Control Over a Home Caregiver Renders Him or Her an Employee for Unemployment Compensation Taxes

 

Last week, the Franklin County Court of Appeals found that home caregivers were “employees” for purposes of unemployment compensation and that the employer was responsible for contributions for the past three years. Miracle Home Health Care, L.L.C. v. Ohio Dept. of Job & Family Servs., 2012-Ohio-5669.  This was true even though the company did not direct their daily activities, they were permitted to work for other employers and to have their own clients and no specialized training was required.  Indeed, the Unemployment Compensation Review Commission initially ruled in favor of the company, but that decision was later vacated.  The evidence showed that the caregivers’ contract with the company provided the company with control over their activities and required the submission of weekly written reports, there was a continuing relationship between the parties, the caregivers’ work was part of the company’s regular services, the relationship was at-will and the caregivers could not experience profit or loss by subcontracting their services, etc. This was sufficient evidence to hold the company liable as an “employer.”

The statutory definition of "employer" for unemployment compensation purposes includes limited liability companies which have "in employment at least one individual." O.R.C. § 4141.01(A)(1)(a).  The alleged employer bears the burden of proving that an individual is not covered by the statute.  Ohio Administrative Code §4141-3-05 utilizes the 20 common law factors as "guides" for determining whether sufficient direction or control exists to create an employer-employee relationship under the statute.

 

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.

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 Supreme Court: No Unemployment Compensation for Employees Who Fail to Obtain and Maintain License Required by Job

This morning, a unanimous Ohio Supreme Court held that “When employment is expressly conditioned upon obtaining or maintaining a license or certification and an employee agrees to the condition and is afforded a reasonable opportunity to obtain or maintain the license or certification, an employee’s failure to comply with that condition is just cause for termination for unemployment compensation purposes.” Williams v. Ohio Dep’t of Job & Family Svs, 2011-Ohio-2897. In that case, the claimant applied for a promotion which required her to obtain her LISW certification within 15 months. With her employer’s consent, she postponed taking her first examination for health reasons, failed the examination when she ultimately took it and exhausted the 15 month deadline plus health-related extension before the next opportunity to take the examination 90 days later arose. Accordingly, she was fired. Although she was initially denied unemployment compensation, the Cuyahoga County Court of Appeals reversed the denial on the grounds that two other program managers (hired years earlier) lacked LISW certification.

Under Ohio’s unemployment compensation decisions, the Unemployment Compensation Act “does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. When an employee is at fault, he is no longer the victim of fortune’s whims, but is instead directly responsible for his own predicament. Fault on the employee’s part separates him from the Act’s intent and the Act’s protection. Thus, fault is essential to the unique chemistry of a just cause termination.”

Fault on an employee’s part is an essential component of a just cause termination. Fault, however, is not limited to willful or heedless disregard of a duty or a violation of an employer’s instructions. Id. at 698. Unsuitability for a position constitutes fault sufficient to support a just-cause discharge. “An employer may properly find an employee unsuitable for the required work, and thus to be at fault, when: (1) the employee does not perform the required work, (2) the employer made known its expectations of the employee at the time of hiring, (3) the expectations were reasonable, and (4) the requirements of the job did not change substantially since the date of the original hiring for that particular position.

The Court found that the claimant was aware of the LISW requirement when she accepted the position and was not treated unfairly. As for the argument that the LISW requirement was not evenly applied, the Court found that the other two employees were not similarly situated since they had been hired years earlier and had more experience. Moreover, the employer demonstrated that the only other program manager hired (before the claimant but after the other two program managers) had been similarly required to obtain her LISW certification as a condition of the promotion.

As the review commission noted, a company is entitled to increase the educational requirements for employment opportunities. Nothing in the record shows that the requirement — to obtain LISW certification within 15 months — was an unreasonable expectation or that other individuals were contemporaneously hired as program managers and were not required to obtain LISW certification. Thus, even if we were to adopt a requirement that any company policy must be fair and fairly applied before a termination for failure to follow that policy is deemed a just-cause determination, there is competent, credible evidence upholding the review commission’s decision that [Claimant’s] termination was for just cause.

The parties’ oral argument is available for viewing on the Supreme Court’s website.

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 Gets Tough with Unemployment Claimants

The Franklin County Court of Appeals issued two decisions yesterday denying unemployment compensation. In the first case, the employee was fired after not showing up for an investigatory interview that had been scheduled less than 24 hours earlier and even though he had been told by a Human Resources employee that she knew nothing about any such interview and there was a question whether the conduct underlying the investigation would have justified his termination. Williams v. Ohio Dept. of Jobs & Family Servs., 2009-Ohio-6328. In the second, an employee was fired for tardiness even though she admittedly only received one prior warning that her employer was dissatisfied with her timeliness and none about her general work performance. White v. DKS Group Inc., Proteam Staffing, 2009-Ohio-6329.

In Williams, the employee managed a group home for youths. After serving a two-week suspension for work issues, he was suspended again pending an investigation into additional allegations about his failure to take corrective action against a subordinate (which ultimately may have proved to be unfounded). He then filed a grievance against his two superiors and was placed on paid administrative leave pending an investigation of his grievance. Although the employer’s policy provided for resolving such grievances for two weeks, he heard nothing further from the employer for six weeks. The employer had attempted to contact him by mail, but the letters were returned by the Post Office. The employer also claimed to have left several voice mail messages, but the employee denied that. At that point, he received a telephone call that he was to meet with the employer’s attorney the following day, but was given no further details – such as a telephone number or location. He then called Human Resources, where an employee told him that no decision had been rendered on his grievance and she knew nothing about any meeting with the attorney. Therefore, he failed to attend the scheduled interview. Accordingly, the employer then terminated him for abandoning his job and he received notice the following month.

His unemployment compensation application was denied by the ALJ, the UCBR and the common pleas court. A divided Court of Appeals affirmed.

First, it was concluded that the employee failed to make reasonable efforts to maintain contact with his employer and ascertain the status of his grievance. He argued that he had been informed in writing and verbally to have no contact with his employer while on administrative leave, but the employer explained that this meant only his peers and subordinates – not HR or management. The Court found the employee’s testimony to be confusing on this point because he denied receiving the written instruction to not contact the employer and never claimed that he had been told not to contact HR. In fact, he contacted HR after receiving the telephone call and again three weeks later (when he learned he had been fired).

Second, it was concluded that the employee unreasonably failed to appear at the interview scheduled with the attorney. For reasons that were not explained in any detail, the Court concluded that it was unreasonable for the employee to rely on what he was told by HR and that, instead, he should have requested her to investigate further or to have requested more information – such as the attorney’s telephone number and email address so that he could independently confirm her information. It also found that if he found the short notice to be unreasonable, he should have requested the interview to be rescheduled instead of ignoring it altogether.

Third, the Court was unconcerned with the employee’s argument that the employer violated its own policy by not resolving his grievance within two weeks as called for in its policy because, among other things, the employee failed to introduce a copy of the policy into evidence. However, the dissent noted that the employee attempted to introduce the policy into the record, but the ALJ refused to accept it on the mistaken belief that it had been earlier admitted. The dissent also had difficulty affirming the denial of unemployment compensation to an employee who was terminated while on administrative leave pending a tardy resolution of his own grievance when there were no other grounds to support the termination and he had relied on incorrect information given to him by the employer’s HR employee and a direction to not contact any employee at the employer.

In White, the employee worked for a temporary staffing company, which claimed that she had been removed from 50% of her prior assignments for complaints about her poor work performance and from her last assignment because of tardiness. The employer “testified that [its] policy provided that, if an employee was tardy three or more times in a 30-day period, then discipline, including termination, could result. Upon learning from [the client] that [the employee] had attendance issues, and after reviewing [the employee’s client] timesheets, [the employer] concluded that [the employee] had violated the [company’s] attendance policy.”

In turn, the employee testified that no one had ever mentioned that her performance had been in any way unsatisfactory and that her temporary assignments had just ended as scheduled. However, the company did not produce the purchase orders she had subpoenaed to support her argument and her attorney failed to object to this to preserve the error. Instead, she testified that her last assignment had been scheduled to last another three months before she was fired. She also denied that her timeliness violated the client’s flex-time policy and that after it was first mentioned to her, she stopped using flex time. However, when confronted with copies of her time sheets, she admitted that she arrived after her scheduled start time on several occasions (because of, among other things, transportation issues) and sometimes failed to work 40 hours in a week.

The hearing officer reversed her grant of unemployment benefits, which was not reviewed by the Unemployment Compensation Board of Review and was affirmed by the common pleas court. On appeal, the Court found no error because of the evidence that the employee had been late on numerous occasions and sometimes failed to work 40 hours/week in violation of the policies of both her employer and its client. Further, it found insufficient evidence that missing evidence would have changed the result.

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: Unemployment Compensation Was Properly Denied When Employee Could Not Satisfactorily Perform Difficult Job.

The Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to an employee who failed to successfully complete his 9-month probationary period and attributed this to unreasonable job expectations and lack of sufficient job training. Lyons v. Director, Ohio Job and Family Services, 2008-Ohio-3547 (7/17/08). Although the employee was successful in his first three months and received a 10% raise, his performance was severely criticized thereafter and, like half of the employees who started work with him, was terminated for poor performance. The employee blamed the lack of adequate job training and unreasonable job expectations, but the court found that “[u]nsuitability [for employment] may be found where the requirements of the job are extremely stringent.”

By way of background, the employee was hired as a research analyst by a medical market research firm. His duties included conducting “epidemiology research and examining various products and their comparative differences.” The employer contended that it provided intensive training for the first three weeks, including showing “him company guidelines, protocols and worksheets but, according to [his supervisor], training was on-going.” In contrast, the employee testified that his training only lasted a few days. In any event, after his first three-month probationary evaluation, he scored well and received a 10% raise. However, his next three-month evaluation was negative and, despite being given additional time to improve, he was terminated after insufficient improvement was observed. In particular, “his analysis was not sufficiently detailed and he did not request guidance.” As evidence, emails from his supervisor’s boss were produced during the administrative hearing showing pre-existing criticism of his “work for lack of depth and content.”

His supervisor “acknowledged that, of the four people who were hired with him, only two are still with [the firm]. She also noted that [the employee] was frequently tardy but she could not say whether this interfered with his ability to perform the work. Rather, it seemed to show a loss of interest in the job. . . . . Finally, she explained that the job is extremely challenging, the company only hires "way above average workers" and it is difficult for the company to find appropriate employees. Extremely talented individuals, including a doctor, have had difficulty holding the position.” Indeed, the employee himself testified about preparing numerous drafts of reports which never met management’s expectations.

The court found that “[u]nsuitability for a position constitutes fault sufficient to support a just cause [for termination] determination.” Relying on Supreme Court precedent, the court noted that an “employer may properly find an employee unsuitable for the required work, and thus to be at fault, when: (1) the employee does not perform the required work, (2) the employer made known its expectations of the employee at the time of hiring, (3) the expectations were reasonable, and (4) the requirements of the job did not change since the date of the original hiring for that particular position.” The primary issue of contention in evaluating the employee’s entitlement to unemployment compensation was whether the employer’s job expectations were reasonable.

“The evidence demonstrated that the position is extremely challenging. It is undisputed that the company only hires "way above average workers" and it is difficult for the company to find appropriate employees. Extremely talented individuals including a doctor have had difficulty holding the position. Only two of the four people hired with [the employee] were still employed at [by the employer] at the time of the hearing. Moreover, the evidence demonstrated that the employee, although the claimant is extremely intelligent and well-educated, could not complete many of the assignments to the employer's satisfaction. The stringent job requirements do not bar the determination of unsuitability. . . . In addition, the employer's expectations were made known to [the employee] at the time he was hired, the expectations, though high, are reasonable in light of the nature of the position and the requirements of the job did not change.”

Although the employee argued that the job expectations were unreasonable in light of the amount of job training provided, the court disagreed because the employee “held the position for approximately eight months, his work was critiqued in a detailed way and personnel was available to answer questions.” In other words, permitting a suitable time for on-the-job learning, providing formal feedback and having personnel available for questions is sufficient job training.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/8/2008/2008-ohio-3547.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.

Unemployment Compensation Denied to Employee With DUI on Personal Time in Company Vehicle.

On September 25, 2007, the Franklin County Court of Appeals affirmed the denial of unemployment compensation to an employee who had been fired for driving an employer-owned vehicle while under the influence of alcohol during personal time. Kisker v. Ohio Dept. of Job & Family Servs., 2007-Ohio-5019. The employee failed a field sobriety test and breathalyzer administered by the Westerville police after they stopped him for speeding. The employer had a policy providing that employees could be fired for a first offense of driving a company vehicle while under the influence whether on personal or work time. (The policy provided that employees would certainly be fired for a second offense). The employee admittedly had been given a copy of this policy.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomiacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/10/2007/2007-ohio-5019.pdf.