Franklin County Court of Appeals: Whistleblower Protection Is Not Available When Employee Submitted Complaint to OIG Which She Did Not Write Herself.

Yesterday, the Franklin County Court of Appeals affirmed the dismissal of a civil service proceeding where an administrative assistant was placed on 30-day suspension for submitting a complaint to the Office of Inspector General about an incident in her workplace because her husband wrote it for her and she was less than honest about the circumstances during the investigation. Ressler v. Ohio Dept. of Transp., 2009-Ohio-5857. The Court agreed that she was not entitled to protection under Ohio’s Whistleblower statute because her husband wrote the complaint instead of her even though she was the person who admittedly submitted the complaint to the OIG.

According to the Court’s opinion, ODOT’s chief inspector chewed out a number of employees about a missing computer hard drive. The employee heard about the incident after the fact, told her husband about it and later faxed an anonymous complaint about the incident (written by her husband) to the OIG. The complaint said that the investigator twice “threatened employees by saying he was going to drop a bomb on District 5” if the hard drive did not appear by quitting time on Friday. The investigator allegedly "said it he was acting like a mad man. He was shaking his finger in the employees [sic] faces. He would ask a question but before you could answer he would start yelling again." The complaint also indicated that employees were afraid and did not want to return to work unless the investigator was removed. Remarkably, the OIG treated this as a bomb threat.

In its subsequent investigation, the employee initially denied any involvement in the complaint, but later admitted that she faxed it without reading it or knowing its contents. The OIG’s office found her to be evasive and uncooperative and subsequently wrote the ODOT Director to report that she "committed acts of wrongdoing by sending false statements to this office and providing false testimony under oath." Accordingly, ODOT suspended her for 30 days for failure of good behavior and failing to cooperate in an official investigation. She appealed the suspension to SPBR and claimed protection as a whistleblower under R.C. 124.341. The SPBR dismissed both claims for lack of jurisdiction. The SPBR did not have jurisdiction over a suspension or over whistleblower claims where the employee was not the author of the complaint. On appeal, the trial agreed.

R.C. 12.341 prohibits retaliation against employees who file reports. The relevant portion of the statute provides:

If an employee in the classified or unclassified civil service becomes aware in the course of employment of a violation of state or federal statutes, rules, or regulations or the misuse of public resources, and the employee’s supervisor or appointing authority has authority to correct the violation or misuse, the employee may file a written report identifying the violation or misuse with the supervisor or appointing authority. In addition to or instead of filing a written report with the supervisor or appointing authority, the employee may file a written report with the office of internal auditing created under section 126.45 of the Revised Code.

. . . If an appointing authority takes any disciplinary or retaliatory action against a classified or unclassified employee as a result of the employee’s having filed a report under division (A) of this section, the employee’s sole and exclusive remedy, notwithstanding any other provision of law, is to file an appeal with the state personnel board of review within thirty days after receiving actual notice of the appointing authority’s action.

The clear language of the statue only requires an employee to file a written report. The Court has recognized that “the primary objective of R.C. 124.341 is to protect state employees who report violations or misuse from retaliation." However, notwithstanding this fact, the Franklin County Court of Appeals has refused to protect employees who file reports under this statute unless they also wrote the report. According to the Court:

retaliation based on the mere transmission of a report is tenuous at best, explaining "the statutory scheme clearly contemplates that the employee making the report play a bigger role than that of mere courier . . . We thus concluded an employee's responsibility for delivering the writing is not sufficient to comply with the statute's reporting requirements.

In this case, the employee was indisputably suspended in part for her role in sending the complaint to the OIG. However, she “did not author the letter on which she now relies for whistleblower protection. Although [she] was responsible for the letter's transmission to the appropriate authority, her being a "mere courier," . . . is not sufficient. Simply causing the letter's transmission, without any part in the letter's authorship, does not meet the written report requirement under R.C. 124.341.” Moreover, her suspension was based on more than faxing the complaint to OIG; it was also based on her evasive and uncooperative behavior during the subsequent investigation.

It would be a more interesting case if the employee had claimed to be more than a “mere courier” and had, instead, admitted knowledge and agreement with the contents of the complaint as being the basis for her faxing it to the OIG.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5857.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.

Franklin County Court of Appeals Affirms SERB Finding that Cincinnati Assistant Fire Chiefs Are Not Managers.

Yesterday, the Franklin County Court of Appeals affirmed a SERB ruling that Assistant Fire Chiefs were not management level employees and, thus, could join the IAFF bargaining unit. Cincinnati v. State Emp. Relations Bd., 2009-Ohio-5782. While the trial court noted that there was some evidence in the record supporting the City’s argument (that its four Assistant Chiefs were managers), it concluded that it must presume the correctness of the SERB factual findings when they were supported by substantial evidence. The Court of Appeals concluded that it could only reverse the factual conclusions for an abuse of discretion, which it did not find. In particular, the evidence showed that many of the Assistant Chief’s former management and administrative duties were transferred to the new Executive Officer hired in July 2007 and who began to act as the Chief in his absence (rather than the Assistant Chiefs).

To start, the Court noted that “public employees” have the right under Ohio Revised Code 4117.03 to join unions unless they are, among other things, “management level employees” as defined by 4117.01. In turn, § 4117.01(L) defines a management level employee as "an individual who formulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required" on the public employer's behalf "to assist in the preparation for the conduct of collective negotiated agreements, or have a major role in personnel administration."

After the Executive Officer position was created in 2007, the Assistant Chiefs testified that they no longer filled in for the Chief and could not authorize purchases. While they presided over grievance hearings and could recommend disciplinary action, their recommendations had to be first approved (and could be changed) by the Chief, the Law Director and the City Manager. They could not settle grievances on their own authority. While they implement and enforce the bargaining agreement, all interpretation is left to the Human Resources Department. Admittedly, the Assistant Chiefs review District Chiefs (who in turn review Captains, who review Lieutenants, etc.). There was also evidence that they had no control over setting policy, although they could make recommendations.

While Assistant Chiefs had participated on the management team in bargaining negotiations in 2001 and 2003, they thereafter refused to participate on the grounds that they were IAFF members (even though not part of the bargaining unit). Therefore, they did not meet the statutory definition under that clause, either.

The Court rejected the City’s argument that the Assistant Chiefs outrank the Executive Officer at a fire scene because the Department followed “incident command” where the ranking officer was in Charge, whether it was the Chief, the Assistant Chief, the District Commander, Captain or Lieutenant. In contrast with the management level Captains in Twinsburg Fire Fighters, Local 3630 v. SERB, the Cincinnati Assistant Chiefs never or rarely “recommended changes to the Standard Operating Procedures and Guidelines that were adopted, updated the personnel manual, . . . re-wrote the driver's training manual without needing approval of the content, . . . enforced discipline, were in charge of fire safety programs and safety committees, and represented management during contract negotiations.”

Finally, the Court rejected the City’s argument that the Assistant Chief’s testimony should be disregarded when they accepted the benefits of a contract (which then became a City Ordinance) which gave them a 16% raise on account of their non-bargaining unit and fiduciary status. The Court agreed with the trial court that the analysis was governed by Revised Code 4117 instead of a written agreement between the parties.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5782.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.

Sixth Circuit Dismisses FMLA Claim of Employee Hit By Car for Lack of Specific Medical Evidence Despite Employer’s Own FMLA Violation.

This morning, a divided federal Sixth Circuit Court of Appeals affirmed the dismissal of an FMLA claim, but on different grounds than the trial court. Stimpson v. UPS, 08-2263 (6th Cir. 11/3/09). The Court found that the employee did not qualify for FMLA leave because he failed to show that he suffered from a serious health condition even though he had been injured when his bicycle was hit by an automobile, visited an emergency room, was prescribed medication and produced statements from two different physicians that he was unable to work for several weeks. Rather, the Court was influenced by the plaintiff’s failure to fill the drug prescription given to him in the ER and the lack of specificity by his medical providers. Nonetheless, the Court also rejected the argument that the plaintiff failed to give sufficient notice of his need for FMLA leave and noted that the employer violated the FMLA when it only gave the employee 72 hours to produce a medical statement under the collective bargaining agreement because the FMLA gave the employee 15 days to produce such a statement. However, the employer’s violation did not save the employee’s FMLA claim because he failed to produce the requested medical statement within fifteen days.

As described by the Court, the plaintiff was riding his bicycle (while intoxicated) when it was struck by a car around 3:30 p.m. on April 29, 2006. The motorist was cited for following him too closely. He denied medical treatment at the scene, but later visited an ER where he was prescribed medication after complaining about lower back pain and the physicians noted extensive bruising where he had collided with the road pavement in the earlier accident. He was also diagnosed with an acute lumbar strain. He was discharged 2.5 hours after checking in. Even though he never filled the medical prescription, he returned to the ER the next day because of his back pain and was promptly discharged for failing to fill his earlier prescription. There was evidence that he also notified his supervisors at UPS about his accident, but he did not return to work for about three weeks, failed to call off daily under regular UPS procedures and failed to provide medical documentation of his inability to work before May 22. UPS claims that it verbally requested medical documentation and sent him a letter requesting medical documentation to be submitted within 72 hours (as required under the CBA). When the plaintiff failed to submit medical documentation before May 12 (because, as he claimed, he had moved and did not receive the UPS letter until May 22), he was terminated.

On May 23, the plaintiff filed a grievance with the union and submitted three medical statements that he could not work until May 20. When his grievance was denied, he filed an Unfair Labor Practice Charge with the NLRB on the grounds that he was being retaliated against for his prior union activities (in that he had previously been terminated by UPS for union activities and was reinstated by court order in September 2005 after an earlier ULP Charge he filed with the NLRB). However, unlike his prior ULP Charge, the NLRB dismissed this Charge. He then filed his FMLA lawsuit.

The District Court granted summary judgment to UPS because it concluded that the plaintiff was not eligible for FMLA leave in that -- even disregarding his earlier unlawful termination – he had not worked 1250 hours in the prior 12 months and had failed to give proper notice of his need for FMLA leave. In addition, the trial court questioned whether he suffered from a serious health condition under the circumstances.

The Court of Appeals agreed with the plaintiff that there was a material factual dispute about how many hours he would have worked in the prior 12 months if he had not previously been unlawfully terminated. Even though the NLRB only required payment of a certain amount of back pay (less than 1250 hours), it failed to address the plaintiff’s claim that he would have worked additional hours and such evidence had been submitted to the District Court. Accordingly, summary judgment on that issue was inappropriate.

The Court also found sufficient evidence that the plaintiff had properly notified UPS of his accident and potential need for FMLA leave. The Court also noted that UPS acted entirely properly by notifying the plaintiff in writing that it wanted more medical information before designating FMLA leave. The Court did not address the question of whether the plaintiff was required to call off each day as required by UPS internal procedures.

However, the Court found that UPS violated the FMLA by only giving the plaintiff 72 hours written notice of the need for medical documentation:

The regulations state that “[t]he employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so.” 29 C.F.R. § 825.305(b). While UPS argues that its labor agreement with the Teamsters allows it to provide a shorter time period of seventy-two hours, the FMLA expressly provides that no collective bargaining agreement, such as that UPS has with the Teamsters Union, may diminish any protection granted by the FMLA. 29 U.S.C. § 2652(b). The fifteen-day period expired on May 20, 2006, two days before [the plaintiff] submitted his medical information. However, UPS terminated [the plaintiff] on May 12, 2006, well before the expiration of the fifteen-day period. [The plaintiff] missed the deadline, but UPS had first terminated him under a mistaken understanding of the applicable deadline.

Section 2652(b) of the FMLA provides that: “The rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan.”

Ultimately, the Court majority concluded that UPS’s mistake was irrelevant because even if he had submitted the information within fifteen days, the plaintiff failed to show that he suffered from a serious health condition. The plaintiff had never been admitted as an inpatient. His failure to fill his ER prescription also meant that he could not show a regiment of continuing care. “For example, an outpatient procedure with a follow-up appointment is not a “regimen of continuing treatment.” See Morris v. Family Dollar Stores of Ohio, Inc., No. 07-3417, 2009 U.S. App. LEXIS 6852, at *17-18 (6th Cir. Mar. 31, 2009).”

Surprisingly, the Court also found the medical statements submitted by his physicians to be deficient:

While [the plaintiff] has produced three separate notes from physicians stating that he could not return to work, the most detailed notation given on the forms is that [the plaintiff] cannot work “for medical reasons.” These notes fall far short of the requirement that any doctor’s certification must contain at a minimum “(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the employee is unable to perform [his] job duties” in order to be valid.

The Court was also influenced by the fact that the plaintiff failed to follow his physician’s treatment advice:

[The plaintiff] also has not provided any other medical evidence to counter the emergency treating physician’s final diagnosis of bruises and mild back pain. Importantly, none of the medical information [the plaintiff] has provided suggests that his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the plaintiff] refused to take. Because [the plaintiff] cannot demonstrate that he suffered from a serious health condition, he is not eligible for FMLA leave.

In short, even though two different physicians indicated that the plaintiff should not return to work for three weeks and even though there was no contrary medical evidence offered by the employer, the Court disregarded their expert medical opinions of the treating physicians and focused, instead, on the particular diagnosis and the fact that the plaintiff failed to follow medical advice (which presumably lengthened his period of disability).

In contrast, the dissent concluded that UPS would be required to first notify the plaintiff why his medical certification was deficient before he could be terminated for failing to satisfy his burden of proof. The majority dismissed this concern on the grounds that the plaintiff failed to submit any medical documentation within fifteen days. Thus, only when medical certification has been timely submitted would an employer be required to permit an employee to cure a deficiency.

The dissent also noted that while bruises probably are not serious health conditions, an acute lumbar strain could be:

Symptoms vary depending on the severity of the strain, but “[t]ypically, the patient with a low back strain moves with care, particularly when sitting down or standing up.” Id. Treatment “includes patient reassurance, brief bed rest during the acute phase of low back pain, a firm mattress with a bed board, and the judicious use of analgesics or nonsteroidal anti-inflammatory drugs (NSAIDs).” Id. ¶ 15A.46. Additionally, “the patient should be instructed to avoid activities that intensify back pain.” Id. The recovery period depends upon the severity of the strain. Although “[t]he acute back strain patient generally experiences gradual improvement over a period lasting approximately two weeks,” patients with severe strains may not recover for up to three weeks. Id. ¶ 15A.47. Finally, there is a “significant likelihood of recurrence,” and “[w]hile the first episode of back pain is usually the briefest and least severe, the vast majority of such patients are at risk of developing another episode of back pain that will be more severe and longer lasting.” Id. Clearly, an acute lumbar strain can be a “serious health condition that makes the employee unable to perform the functions of [his] position.” 29 U.S.C. § 2612(a)(1)(D).

The majority dismissed this concern as merely hypothetical in light of the lack of evidence and specificity in the medical statements.

Insomniacs may read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0712n-06.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.

New Act Expands Servicemember and Caregiver Leave under the FMLA.

As discussed in the February 13, 2008 posting at Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered? , on January 28, 2008, President Bush signed the National Defense Authorization Act of 2008, § 585 of which amended the FMLA to create two new forms of family leave: exigency leave and caregiver leave for members of the families of military servicemembers. Yesterday, President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which amended the NDAA Amendment to the FMLA. In this very long Act, section 565 amends the FMLA in a number of respects.

In short, the new FMLA amendments delete references to “contingency operations,” replaces “active duty” to “covered active duty,” expands exigency leave coverage to members of the families of active members of the regular armed forces (instead of just members of the reserved forces and national guard) and expands coverage of the 26-week servicemember leave to families of veterans who served in covered active duty at any point in the prior five years and were injured in the line of covered active duty.

First, the new amendment deletes the “newish” subsection (16) of the amended FMLA and amends the “newish” subsections (14), (15), and (19):

(14) ACTIVE DUTY.—The term ‘active duty’ means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) CONTINGENCY OPERATION.—The term ‘contingency operation’ has the same meaning given such term in section 101(a)(13) of title 10, United States Code.
(16) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
. . .
(19) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’, in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

These “newish” subjections have been replaced by the following language:

(14) COVERED ACTIVE DUTY.—The term ‘covered active duty’ means—
‘‘(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
(15) COVERED SERVICEMEMBER.—The term ‘covered servicemember’ means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
. . .
(18) SERIOUS INJURY OR ILLNESS.—The term ‘serious injury or illness’—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
‘‘(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred
by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

The “newish” subsections (16) through (19) have now been renumbered as paragraphs (15) through (18), respectively. In other words, the language of “newish” subjections (17) and (18) has not changed, but they have been renumbered to (16) and (17) and “newish” subjection (16) [on contingency operations] was deleted entirely.

Second, the new amendment modified 29 U.S.C. § 2612(a)(1)(E), which currently provides:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

To the following language:

(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.

Third, 29 U.C.S. § 2612 (e)(3) has been amended as follows:

From the current language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.

To the new language:

NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER.—In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.

Fourth, the new Act inserts the following language for 29 U.S.C. § 2611(19):

(19) VETERAN.— The term ‘veteran’ has the meaning given the term in section 101 of title 38, United States Code.

Finally, the employee’s duties regarding foreseeable leave under 29 U.S.C. § 2612(e)(2)(A) have been amended as follows:

(2) Duties of employee.
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) of this section is foreseeable based on planned medical treatment, the employee -
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer,subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and

Revised FMLA regulations are sure to follow at some point . . . .

Insomniacs can read the new Act in its entirety at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2647enr.txt.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 Court of Appeals: Employer Not Entitled to Self-Help By Keeping Employee’s Pay Check When He Removed Information from the Company’s Laptop.

Last month, the Ohio Court of Appeals for Richland County affirmed a trial court judgment which held that an resigning employee was entitled to his salary and final paycheck which his former employer withheld when it discovered that he had deleted information from the employer’s laptop. Bush v. Signals Power and Grounding Specialists, Inc., 2009-Ohio-5095 (9/25/09). However, the court remanded the case in order for the trial court to determine whether the employee should be liable for converting the employer’s property by wiping clean the laptop’s hard drive.

According to the court’s opinion, the plaintiff was employed to train his co-workers and to design and make presentations about the defendant’s business. In doing so, he developed a library of research which he stored on the laptop issued to him by the employer. When he decided to resign, he removed and/or wiped clean the hard drive of the laptop, erased the internet history and changed his password before returning it. Upon discovering that the information was missing, the employer emailed the plaintiff complaining about these actions and stating that he would not receive his final paycheck until this was all straightened out.

The employee then sued for his unpaid wages, unpaid vacation pay and unreimbursed employment expenses. The employer brought a counter-claim for conversion. The employee was ultimately awarded over $16,000 plus interest by the trial court, which dismissed the employer’s conversion counterclaim. The employer appealed.

Conversion consists essentially of retaining another’s property after its return has been requested. The trial court concluded that the employer could not prevail in this case because it had never demanded the return of its property. The employer argued both that it was not required to demand the return of its property under the circumstances and that, in any event, it had done so. The court of appeals agreed that the employer’s demand was a necessary element of the conversion claim, but that its email complaining about the deletion of the information and threatening to withhold the final paycheck until the matter was resolved could arguably constitute a demand for the return of its property under the circumstances. Therefore, the employer’s counterclaim was remanded back to the trial court to resolve on the merits.

The court of appeals also affirmed the verdict in favor of the employee’s wage claim. The employer argued that it was entitled to retain the employee’s wages because he had been a “faithless servant” by deleting/keeping the information library, etc. However, the court distinguished this situation from where an employee embezzles from his employer over time and the employer recoups his unpaid wages earned during the period of criminal faithlessness in order to minimize the amount of the theft. In this situation, the employee abruptly deleted the information in the minutes before he resigned and it was not accomplished over a lengthy period of time. Thus, retaining the wages he earned over the prior month was disproportionate to an action which took only a few minutes.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/5/2009/2009-ohio-5095.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.