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Whistleblowing, Public Policy, And Retaliation: Part 3 of 3

In the first post of this series, I wrote about the Federal False Claims Act ("FCA") and that it creates a cause of action for employees called a "qui tam" action. I compared the FCA to the basic principles underlying Ohio's whistleblower statute. In my second post, I discussed the anti-retaliation provisions under both laws. In this article, I discuss Ohio's public policy exception to at will employment and how this relates to whistleblowing.

Ohio assumes that the employer-employee relationship is "at will." This means that either the employee or the employer can terminate the relationship at any time and for (almost) any reason. The reason I qualify "any reason" with "almost" is because there are a number of exceptions to this basic presumption. The one I discuss in this post is the "public policy" exception. Under this doctrine, an employee can sue for wrongful termination if the decision to terminate is based on a reason that violates a clear public policy. In order to demonstrate that the decision violates Ohio's public policy, employees must point to a statute, regulation, constitutional provision, or common law that is placed in jeopardy by their termination.

For example, Ohio has an anti-discrimination law that prohibits employers from firing employees based on their sex, race, religion, disability, age, or military status. In order for the statute to apply, the employer must have at least four employees. However, the Ohio Supreme Court found that, because Ohio has manifested a clear public policy against discrimination, if the employer has fewer than four employees and discriminates by firing an employee on the basis of a protected characteristic, the employer has violated Ohio's public policy. Thus, the employee will have recourse under common law where the statute will not protect them.

How does this relate to whistleblowing?

In Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 162, 677 N.E.2d 308 (1997), the Ohio Supreme Court answered this very question. There, the Court stated that an employee could pursue a public policy claim separate from a whistleblower cause of action if the employee could identify a policy independent of the whistleblower statute. Thus, the employee's public policy claim cannot be premised on the fact that Ohio has a statute prohibiting retaliation for whistleblowing. In other words, the employee cannot use the common law to get around the strict mandates of the whistleblower statute. In order to prevail on a public policy claim that appears to parallel the whistleblower statute's underlying principles, the employee must point to another statute, regulation, or law that imposes an affirmative duty on the employee, separate and apart from the whistleblower statute, to report the violation at hand.

For example, school employees have an affirmative duty under the Ohio Revised Code to report child abuse. If an employee is fired for reporting suspected abuse, they may have both a whistleblower claim and a public policy claim. Likewise, if an employee reports a violation of the Ohio Safety and Health Act ("OSHA") and the employer retaliates against the employee by firing them, the employee could sue for discharge in violation of public policy because OSHA specifically prohibits such retaliation. As the First District Appellate Court stated, "[T]he independent source of public policy must parallel the public policy set forth in the whistleblower statute." Hale v. Volunteers of Am., 158 Ohio App. 3d 415, 816 N.E.2d 259, 2004-Ohio-4508, ΒΆ 45.

A final note regarding Ohio's public policy doctrine is that it only applies if the employment relationship is at will. To borrow one of the examples cited above, most school employees are hired pursuant to a contract for a term of years (e.g., a one-year contract). Because there is a clear term of employment, the relationship is no longer at will, but rather, contractual for a definite term. In that instance, the employee cannot sue for wrongful discharge in violation of public policy, because that cause of action exists only for at will employees.

Navigating the FCA, Whistleblower laws, and Ohio's Public Policy doctrine can be tricky and highly technical. If you have any questions regarding how to best approach your employment situation, you should talk to an attorney with experience in these matters. An attorney can help you outline the appropriate strategy and advise you as to how to deal with your employer and can represent you with sophisticated legal analysis if your case proceeds to litigation.

By: Chelsea Long

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