Carcorp hired Barry Elam to work in its finance
department. A few months into his employment with Carcorp, Elam sued his prior
employer, Bob McDorman Chevrolet, claiming that it had wrongfully fired him in
retaliation for his cooperating with an investigation by the Ohio Attorney
General into fraudulent credit applications. A year later, Carcorp fired Elam.
Elam then sued Carcorp, claiming that it wrongfully fired
him in retaliation for his lawsuit against his prior employer, in violation of
Ohio's public policy.
In Elam v. Carcorp, Inc. (4/23/13) [an enhanced version of this opinion is available to lexis.com
subscribers], the appellate court affirmed the trial court's
dismissal of Elam's wrongful discharge claim.
For the uninitiated, some background on wrongful
discharge in violation of public policy claims under Ohio law. These claims act
as an exception to the presumption of at-will employment permitting a claim
when an employee is discharged or disciplined for reasons that contravene a
clear public policy. To establish a claim that an employer wrongfully
discharged an employee in violation of public policy, the employee must
demonstrate all of the following:
After an extensive analysis of Elam's claimed public
policy-the Open Courts provision in the Ohio Constitution-the appellate court
rejected Elam's public policy claim, on the basis that "Elam did not articulate
any clear public policy that his termination from employment violated."
In the final analysis, Elam did not demonstrate the Open
Courts provision represents a clear expression of legislative policy barring an
employer from discharging an employee as a result of the employee's lawsuit
against a third party. To hold otherwise would expand the public policy
inherent in the Open Courts provision beyond the provision's clear meaning and
infringe upon the legislature's duty to make and articulate public policy
While academically interesting, this case raises a more
interesting practical consideration. These "public policy" retaliation cases
often hinge on the creativity of plaintiff's counsel to find a legislative or
constitutional hook on which to hang the alleged public policy, and the court's
willingness to approve of the creativity. Indeed, the more creative the public
policy, the more unpredictable the outcome of potential litigation. For this
reason, employers should treat all employees complaining about anything
in the workplace as ticking time bombs, as if their complaints are protected by
some law or another. If a court later rejects a public policy claim, all the
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