Continuing its recent trend of limiting – rather than expanding – the availability of public policy wrongful discharge claims, the Ohio Supreme Court earlier this year clarified what the phrase “clear public policy” means. Although the Court’s latest pronouncement on this topic may not stem the tide of public policy claims employers face, it nonetheless provides another means of defense against them.
In Dohme v. Eurand Am., Inc., the company’s facilities administrator sued the company claiming that the termination of his employment violated public policy. The company, on the other hand, claimed that it terminated the facilities administrator’s employment due to his insubordination. In particular, the company sent an e-mail to all employees in advance of an insurance adjuster’s inspection that alerted employees that the facility would be inspected and that only certain employees of the company were to have contact with the adjuster. The facilities administrator was not one of the designated employees. Nonetheless, the facilities administrator told the adjuster that “he might want to find out what happened with” a fire inspection report allegedly removed from the company’s computer system. After learning of the facilities administrator’s communication with the adjuster, the company terminated the facility administrator’s employment.
In his lawsuit, the facilities administrator purported to identify a clear public policy favoring fire safety in the workplace. He did not, however, specify any particular provision of law on which he based his public policy wrongful discharge claim. The Ohio Supreme Court concluded that the facility administrator’s claim failed due to his failure “to articulate, by citation to its source, a specific public policy that [the company] violated when it discharged him.” In so doing, the Court rejected the lower court’s attempt to fill in that gap in the facilities administrator’s claim, noting that “[t]here may be valid reasons for a plaintiff’s failure to identify and assert a specific public policy or a specific source for that public policy.” (Although we would not presume to speak for the Court, one such reason for a plaintiff to fail to identify a specific source for a public policy claim may be that, where a statute, for instance, already provides an adequate remedy for the harm claimed, piggyback public policy claims fail as a matter of law.) The Court therefore determined that the company was entitled to judgment in its favor on the public policy claim.
So what does this decision mean for employers? At a minimum, it gives employers a defense against amorphous statements of public policy that are nearly impossible to defend against – the “public policy” against lying, for example. In addition, by forcing plaintiffs to specifically identify their public policy source, the decision allows employers to evaluate whether the claim is subject to dismissal on some other legal ground, such as the availability of an adequate statutory remedy or a plaintiff’s failure to satisfy procedural prerequisites for bringing the claim. In any event, the decision helps employers avoid further erosion of the employment-at-will doctrine by the so-called public policy exception.