Since 1994, Ohio law has recognized a claim for wrongful discharge in violation of a public policy. This is a judicially created cause of action that is ever evolving. In 1994, the Supreme Court of Ohio stated that in order to state such a claim, the plaintiff must be able to point to a clear public policy articulated in the Ohio or United States Constitutions, federal or state statutes, administrative rules and regulations, or the common law. Frequently, plaintiffs with no clear claim under federal or Ohio discrimination laws have couched their claims as ones for wrongful discharge in violation of a public policy. The alleged public policy has varied greatly.
On September 15, 2011, the Supreme Court of Ohio issued its decision in Dohme v. Eurand Am., Inc. (Case No. 2010-1621). In Dohme, the plaintiff alleged he was terminated for raising questions and issues related to plant safety. The typical wrongful discharge in violation of public policy claim will cite to similar public concerns, such as preventing criminal activity, ensuring accurate accounting practice, etc. In Dohme, the Supreme Court determined it was not enough to simply state a general policy exists. Instead, a plaintiff must identify a specific public policy and identify “federal or state constitutional provisions, statutes, regulations, or common law that supports the policy … .” The Supreme Court further explained:
Based on the foregoing, we conclude that to satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law. A general reference to workplace safety is insufficient to meet the clarity requirement.
The Supreme Court made it clear that it is an employee’s burden to articulate a specific public policy, and courts are not permitted to identify a source of public policy for plaintiffs.
This ruling is good news for employers. In the past, employers have been forced to defend actions that alleged an employee was terminated for conduct such as complaining about the manner in which an employer treats customers. Plaintiffs then typically cite some nebulous public policy. The Supreme Court made clear that such general allegations will not suffice.