Spring has sprung, and employers should consider adding an oft-overlooked item to their spring cleaning lists: employee handbook and related policies. An example affecting workers’ compensation temporary total disability (TTD) entitlement can be found in State ex rel. Gray v. Indus. Comm. (February 26, 2013) 2013-Ohio-670 (10th App. Dist.). At issue in the Gray case was a claimant’s motion for TTD compensation. James Gray was injured in November 2005 when he fell from a ladder while working at the employer-car dealership, sustaining left foot and ankle injuries. About three years later, Gray was convicted of driving under the influence (DUI), and as a result, he lost his driver’s license and was no longer insurable under the employer’s automobile insurance policy. In February 2009, the employer fired Gray, citing violation of the following employee handbook policy:
“MOTOR VEHICLE RECORD (MVR) INQUIRY
Employees expected to drive dealership vehicles must provide the dealership with current and acceptable motor vehicle information. Employment and/or assignment will be conditional pending the receipt of a satisfactory report from the State of Ohio Department of Motor Vehicles.”
Gray re-established employment elsewhere in July 2009, was later laid off for lack of work, and subsequently underwent a left foot/ankle surgery related to his 2005 injury. Gray then requested a period of postoperative TTD compensation. However, the Industrial Commission denied the request in an order holding that Gray’s DUI conviction constituted a “voluntary abandonment” of the employment held on the date of his injury (therefore there was no job to return to and no entitlement to TTD). The fact that Gray engaged in subsequent employment did not help him as he no longer held the later job at the time of the TTD request.
Gray filed a writ of mandamus in the Tenth District Court of Appeals challenging the Industrial Commission’s decision, arguing that the DUI conviction, loss of insurability and subsequent termination should not constitute a voluntary abandonment and preclude his receipt of TTD benefits. For a finding of a termination-based voluntary abandonment, as first illustrated in State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, the termination must be generated by a claimant’s violation of a written work rule that: (1) clearly defined the prohibited conduct; (2) had been previously identified as a dischargeable offense; and (3) was known or should have been known to the employee. In Gray, the focus was on the first prong of the Louisiana-Pacific test, and specifically, whether the handbook policy “clearly defined” getting a DUI and losing insurability status as prohibited conduct that could lead to termination.
At the Industrial Commission level, the handbook policy at issue was interpreted as requiring Gray to have a current and acceptable motor vehicle driver’s license throughout his employment, which a hearing officer found that he violated. However, the Court of Appeals found that the Industrial Commission abused its discretion in reaching such a finding. It held that the rule at issue provides for a condition of employment — not a disciplinary rule. The court explained that the policy references an “inquiry” (singular) and only a single report from the Ohio Department of Motor Vehicles, with no explanation of consequences that would result from receipt of subsequent unsatisfactory reports. There was no rule requiring that a clean record be maintained for continued employment, but the court noted that the employer certainly could have put such a policy in place. As such, the court found that the Industrial Commission abused its discretion by interpreting the policy to mean something that its words clearly do not state. The policy failed the first prong of Louisiana-Pacific, and the court granted Gray’s writ of mandamus, ordering the Commission to vacate the voluntary abandonment finding and denial of TTD benefits, and to enter a new order that adjudicates the merits of Gray’s motion for TTD compensation.
By way of contrast, the employer in State ex rel. Parraz v. Indus. Comm. (March 5, 2013), 2013-Ohio-764 (10th App. Dist.), was able to point to specific language contained in an attendance policy under the collective bargaining agreement to assert a winning “voluntary abandonment” defense. In Parraz, the claimant sustained a work-related low back injury, was unable to work for a period of time and eventually returned to work. However, she was a prolific violator of the attendance policy, which required employees to notify the company call-in line of any attendance-related issues at least 30 minutes before the beginning of a shift, and specified that employees who fail to report to work within one hour of their scheduled start times are deemed absent for the day. The attendance policy was a point-based system, with violators collecting points (or fractions of points) for varying degrees of violations of the policy. The policy specified certain point thresholds which would trigger disciplinary action up to and including termination, and employees also had the opportunity to reduce their point totals by maintaining perfect attendance over a designated period of work days.
The claimant in Parraz, who had accumulated 10.5 points prior to her injury, reached the 14- point termination threshold and was terminated under the attendance policy. She subsequently requested TTD compensation, which was denied by the Industrial Commission, as the claimant was found to have voluntarily abandoned her employment under the Louisiana-Pacific test. The claimant filed a writ of mandamus in the Tenth District Court of Appeals, arguing primarily that her absences were not of her own volition, and therefore her termination was not a voluntary abandonment. The Court ruled:
[T]here may be situations in which conduct is not willful, but the nature or degree of the conduct rises to such a level of indifference or disregard for workplace rules and policies so as to support a finding a voluntary abandonment. . . Although not willful, [the claimant’s] conduct did rise to such a level of indifference or disregard for workplace rules and policies as to support a finding of voluntary abandonment.
Although there was a dissent, the Court of Appeals agreed with the Industrial Commission and denied the claimant’s request to reverse the Industrial Commission’s “voluntary abandonment” finding. These cases illustrate the importance of employers maintaining specific language in handbooks, attendance policies and elsewhere that put employees on notice as to how each provision may be violated and the consequences thereof. While the examples given herein relate to workers’ compensation law, the advice of reviewing handbook and like policies has applicability in many scenarios.