Public Policy Exception To At-Will Employment

IN GREELEY V. MIAMI VALLEY MAINT. CONTRACTORS, 49 OHIO ST. 3D 228 (OHIO 1990), THE OHIO SUPREME COURT HELD THAT "[P]UBLIC POLICY WARRANTS AN EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE WHEN AN EMPLOYEE IS DISCHARGED OR DISCIPLINED FOR A REASON WHICH IS PROHIBITED BY STATUTE."  AS A RESULT, AN EMPLOYEE DISCHARGED IN VIOLATION OF R.C. § 3113.213(D), WHICH PROHIBITS AN EMPLOYER FROM DISCHARGING OR DISCIPLINING AN EMPLOYEE BASED ON A WAGE WITHHOLDING ORDER BUT DOES NOT EXPRESSLY AUTHORIZE AN EMPLOYEE SUIT, WAS ALLOWED TO PURSUE A TORT CLAIM AS A RESULT OF HIS TERMINATION.  THE COURT HELD THAT THE LEGISLATURE COULD NOT HAVE INTENDED TO LEAVE AN EMPLOYEE DISCHARGED IN VIOLATION OF SUCH A STATUTE WITHOUT AN EFFECTIVE REMEDY.

THE GREELEY STANDARD

 

 

1.  
   
   
   1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).
   
   
    

 

 

1.  
   
   
   1. That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element).
   
   
    

 

 

1.  
   
   
   1. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).
   
   
    

 

 

1.  
   
   
   1. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).
   
   
    

 
Painter v. Graley, 70 Ohio St. 3d 377 (Ohio 1994), fn. 8.

THE JEOPARDY ELEMENT AS A RESTRICTION ON GREELEY

In a 4-3 plurality opinion the Ohio Supreme Court in 2002 significantly restricted Greeley claims by holding that a clear public policy was jeopardized if:

the absence of a cognizable Greeley claim based solely on a violation of the FMLA would seriously compromise the Act's statutory objectives by deterring eligible employees from exercising their substantive leave rights.”
 

Wiles v. Medina Auto Parts, (2002) 96 Ohio St. 3d 240, 242-246.

Under this test, the availability of some remedy under the FMLA, although incomplete, (e.g., no compensatory or punitive damages are available for a violation), barred a Greeley claim.

This was a major retreat from the expansion of Greeley claims. Earlier, the Ohio Supreme Court had held that Greeley's claims are cumulative and that the remedy available in the source of the public policy did not preempt the Greeley claim.  Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St. 3d 134, syllabus 2 and 4; Pytlinski v. Brocar Prods., 94 Ohio St. 3d 77, 79-80 (Ohio, 2002).

Similarly, in Collins v. Rizkana, (1995) 73 Ohio St. 3d 65, the Ohio Supreme Court allowed a Greeley claim based on, among other public policy sources, ORC Chapter 4112, even though the employer had fewer than four employees and was not covered by Chapter 4112.  The Collins court held that “the availability of remedies under R.C. Chapter 4112 will not serve to defeat Collins's sexual harassment tort claim . . . .” See also Livingston v. Hillside Rehab. Hosp. (1997), 79 Ohio St.3d 249 (age discrimination)

Under Wiles, however, a Greeley claim is available only if the remedy related to the source of the public policy is so deficient that the employee is deterred from pursuing it.

4112 PUBLIC POLICY CLAIMS

In Leininger v. Pioneer Nat'l Latex, 115 Ohio St. 3d 311 (Ohio 2007), the Ohio Supreme Court held that:

A common-law tort claim for wrongful discharge based on Ohio’s public policy against age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim for age discrimination.

After discussing Wiles, Kulch, and precedent, the Leininger Court stated:

After considering our prior decisions, we conclude that it is unnecessary to recognize a common-law claim when 1) remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and 2) when those remedies adequately protect society’s interest by discouraging the wrongful conduct.

Greeley's claims are thus not supportable solely by the public policy found in ORC Chapter 4112.

4123.90 WORKERS COMP PUBLIC POLICY CLAIMS

In Bickers v. W. & S. Life Ins. Co., 116 Ohio St. 3d 351 (Ohio 2007), the Ohio Supreme Court walked almost completely away from the public policy claim for workers compensation claimants that it had created four years earlier in Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003 Ohio 5357, 797 N.E.2d 61.  Bickers held:

An employee who is terminated from employment while receiving workers' compensation can contact an unlawful termination attorney because has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers' Compensation Act.