Ohio Whistleblower Statute Demands Strict Adherence

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While I regularly get calls from employees claiming to have been terminated for “whistleblowing,” I have found that most employees cannot meet the stringent requirements of the statute. The Ohio Whistleblower Protection Act prohibits employers from taking disciplinary or retaliatory action against an employee who reports criminal conduct. However, the act only applies to certain criminal violations and will only protect an employee who strictly complies with the statute.

ORC §4113.52 will only apply if an employee becomes aware of:

• A violation of a criminal offense that is likely to cause imminent risk of physical harm or a hazard to public health or safety.

• The violation is a felony.

• An improper solicitation for a contribution.

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If an employee becomes aware of one of the above, the employee must notify the employee’s supervisor and provide a written report with sufficient detail to identify and describe the violation. It is important to note that an employee who reports a criminal violation does not have to be correct in order to have the protection of the statute. If the employee had a good faith belief that a violation had occurred, the statute will apply.

The act prohibits any form of retaliation including:

  1. Removing or suspending the employee from employment.
  2. Withholding from the employee salary increases or employee benefits to which the employee is otherwise entitled.
  3. Transferring or reassigning the employee.
  4. Denying the employee a promotion that otherwise would have been received.
  5. Reducing the employee in pay or position.

An employee who is disciplined or retaliated against for blowing the whistle may bring a claim under the Whistleblower Protection Act. The claim must be filed within 180 days of the retaliation, and the employee may seek remedies including reinstatement, lost wages, benefits, seniority rights and attorneys’ fees.

But what happens to employees who are disciplined for reporting conduct that does not rise to the level of a criminal offense that is likely to cause imminent risk of physical harm or conduct that is not a felony? Is there any protection for an employee who is disciplined for reporting less serious offenses?

In Greeley v. Miami Valley Mason Contractors, Inc. (1990), 49 Ohio St. 3d 228, the Supreme Court of Ohio recognized a common law claim for wrongful discharge in violation of public policy. To establish a Greeley claim, an employee must prove:

  1. A clear public policy exists and is manifested in a state or federal constitution, statute or administrative regulation or in common law (the clarity element).
  2. Dismissing employees under circumstances like those involved in the employee’s dismissal would jeopardize the public policy (the jeopardy element).
  3. The employee’s dismissal is motivated by conduct related to the public policy (the causation element).
  4. The employer lacked an overriding legitimate business justification for the dismissal (the overriding-justification element).

The clarity and jeopardy elements involve questions of law, whereas the causation and overriding-justification elements involve questions of fact. Therefore, most appellate decisions involving public policy claims will focus on the court’s analysis of the first and second elements.

In Dohme v. Eurand Am., Inc., (2011) 130 Ohio St. 3d 168, the Ohio Supreme Court held that the employee failed to satisfy the clarity element which required him to articulate a specific public policy contained in either federal or state constitution, federal or state laws, administrative rules, regulations or common law that his employer violated when it discharged him. Rather, the employee in Dohme merely claimed that the employer’s actions had jeopardized workplace safety without citing any specific violation of constitution, statute, regulation or common law. In a 7-0 decision, the Supreme Court denied Dohme’s claim for his failure to cite a clear public policy.

More recently in Rebello v. Lender Processing Servs., Inc. (8th Dist. No. 101764), 2015 – Ohio- 1380, 30 N.E.3d 999, the appellate court reversed the decision of the trial court which granted the employer’s motion for directed verdict. In its decision, the court held that the plaintiff had satisfied the clarity element where she produced evidence to show that her employer had systematically disregarded the password system established by Chase Bank and allowed its employees to access its nonpublic customer information in violation of the Gramm–Leach–Bliley Act. Rebello’s ability to cite a specific public policy contained in a statute, rather than making a general reference to the importance of customer privacy led to her success in establishing the elements of a public policy claim.

To satisfy the jeopardy element, an employee must make it clear to the employer that the employee’s dismissal would jeopardize some governmental or public policy. Furthermore, the jeopardy element will not be satisfied where the employee has an alternative means of promoting the particular policy. As an example, the Family Medical and Leave Act provides an employee with a private cause of action and the ability to recover compensatory and liquidated damages. Therefore, an employee could not bring a wrongful termination claim based on public policy because the jeopardy element would not be satisfied.

In summary, most employees who claim to be “whistleblowers” will probably not have the protection of the Ohio Whistleblower Protection Act; however, some may be able to state a claim for wrongful termination in violation of public policy. But even those claims require that the employee identify clear and specific public policies to prevail.  Kristen Kraus

OAS

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