The Ohio Supreme Court today decided
Leininger v. Pioneer National Latex. The Leininger decision restricts the public policy exception to employment at will in Ohio. This post assumes that the reader is familiar with Ohio employment at will law and the exception to it created by Greeley v. Miami Valley Maintenance Contrs., (1990), 49 Ohio St. 3d 228.
Greeley’s employment was terminated because he was subject to a court’s wage-withholding order. Although R.C. 3113.213(D) clearly prohibited the employer’s action, that statute provided only for the employer to be fined for a violation and did not grant the employee any civil remedies. The Ohio Supreme Court held in his case 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.”
Later, Greeley was extended and claims for wrongful discharge were allowed for employment terminations that violated public policy as expressed in sources other than the Revised Code. “ ‘Clear public policy’ sufficient to justify an exception to the employment-at-will doctrine is not limited to public policy expressed by the General Assembly in the form of statutory enactments, but may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law.” Painter v. Graley (1994), 70 Ohio St.3d 377, 639 N.E.2d 51, paragraph three of the syllabus.
In 2002, the Ohio Supreme Court seriously restricted Greeley rights by holding that Greeley rights are available only if :
the absence of a cognizable Greeley claim based solely on a violation of the (source of the public policy, there 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.
Today, in Leininger, the Court held that an employee does not have a Greeley claim if she was terminated because of her age. Specifically, the 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.
Does this mean that the Greeley test is now whether the statutory scheme provides "complete" relief?
Apparently not. After discussing Greeley, Wiles and their related decisions 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.
(the numbering is mine).
This test raises some questions:
- When is a remedy provision an "essential" part of the statute? When is it not?
- What is the test if the remedy is not an essential part of the statute?
- What is "adequate" protection?
- To what degree must the remedy "discourage" the wrongful conduct?
To discern how the Ohio Supreme Court might answer these questions, it is worth comparing this to the standard under Wiles, which was, again:
whether the absence of a cognizable Greeley claim based solely on a violation of the (statute, there the FMLA) would seriously compromise the Act's statutory objectives by deterring eligible employees from exercising their substantive leave rights.
Under Wiles, the focus stayed on the employee, and whether the absence of a Greeley claim would deter the employee from exercising the rights that flowed from the source of the public policy. Now the focus is on the wrongdoer and the question is whether the remedy contained in the source of the public policy will sufficiently "discourage" the wrongful conduct to make a Greeley claim "unnecessary."
My take is that the Leininger standard is a significant retreat even from Wiles. It is difficult to see how Greeley remains viable for anything other than its own wage-garnishment facts.
