By Richard N. Selby II
A significant number of my employment-related calls from prospective clients begin the same way: “I have been discharged, what can I do about it?” Unfortunately, the answer is rarely as simple and straight forward as the prospective client would like to hear.
Employee at Will
Generally, in Ohio, you start from the proposition that you are an employee at will. What this means, is that your employer can terminate you at any time, for any reason except under circumstances where the termination would otherwise violate federal or state law.
A termination which is unjust, unfair or fails to comply with pre-established progressive disciplinary provisions in an employee handbook is not, in and of themselves, unlawful. The fact that an employee can prove that he did not do what the employer is charging him with, or that the employer’s expectations are unrealistic, do not give that employee a wrongful discharge claim.
Rather, in addition to demonstrating those elements, the employee must show that the termination was somehow discriminatory or retaliatory.
Prohibited Forms of Discrimination
A number of federal statutes prohibit forms of discrimination. For example, Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against a person because of their race, gender, religion, national origin or pregnancy. The Age Discrimination in Employment Act prohibits age discrimination. The Americans With Disabilities Act prohibits discrimination against individuals with disabilities. Each of these federal statutes has its own procedural prerequisites and remedies.
In addition to these federal statutes, the Ohio Civil Rights Act also makes all of this same conduct unlawful and has its own procedures and remedies.
Pursuing Wrongful Discharge Claims Under the Federal And State Statutes
The procedural avenues for pursuing claims under the federal statutes and the state statutes do differ in some regards. Likewise, the remedies available under the different statutes also vary. As a result, it is often times in a person’s best interests to pursue both the federal and state claims.
Filing a Charge of Discrimination
In pursuing a federal claim under any of the three statutes listed above, a wrongfully terminated employee is required to file a charge of discrimination with the Equal Employment Opportunity Commission or the Ohio Civil Rights Commission before filing a lawsuit. This charge of discrimination must be filed within three hundred days of the date of termination. Under the state statute, however, the employee is not required to file a charge of discrimination before filing the lawsuit, and, with the exception of age discrimination claims, need only file a lawsuit in court pursuant to Ohio Revised Code §4112.99 within six years of the date of their discharge.
Age discrimination claims, however, must be filed within 180 days of termination. With respect to most forms of discrimination an employee is allowed to pursue both federal and state remedies simultaneously. The exception is age discrimination, which provides that if you file a charge of discrimination before filing your state lawsuit, your state lawsuit will be barred. Accordingly, if you want to pursue both state and federal claims, you need to first file a lawsuit pursuant to the state laws and then file a charge of discrimination pursuant to the federal laws.
Generally, the federal claims allow a wrongfully terminated employee to recover economic damages for lost wages and benefits, emotional distress, damages, punitive damages, and attorneys’ fees.
Under the federal age discrimination statute, however, an employee is not entitled to emotional distress or punitive damages but can recover liquidated damages.
The amounts which are recoverable for emotional distress in Title VII and Americans With Disabilities Act claims are limited to differing amounts depending on how large the company is which is being sued. Liquidated damages in an age discrimination claim are limited to the amount of economic damages a plaintiff has suffered.
State of Ohio Claims
State law claims the wrongful discharge brought pursuant to Ohio Revised Code §4112.99 also have a full range of damages including economic damages, emotional distress damages, and punitive damages.
Unlike the federal statutes, however, the claims brought pursuant to the state statutes have no caps associated with emotional distress and punitive damages. In addition, attorneys’ fees are not available to a prevailing plaintiff under the Ohio Civil Rights Act except as a portion of punitive damages.
Because the standard of punitive damages is so much greater than simply prevailing on the claim, this is a significant variation from the federal statutes where any prevailing plaintiff is entitled to a recovery of attorneys’ fees regardless of what the punitive damages have been awarded.
What Constitutes Discrimination
In looking at whether an employee has been discriminated against, it is important to understand that it is not enough that the employee is treated differently from other employees. Rather, you must show that the employee was treated differently because they fell within one of the protected classes, i.e., because of their race, gender, religion, age, national origin or disability. Being treated differently because of the supervisor’s personal animosity towards a particular employee is not unlawful unless that animosity is the result of an employee falling in the protected class.
In addition to the discrimination claims described above, there are numerous statutes which make it unlawful to retaliate against an employee for engaging in protected conduct. For example, all of the discrimination statutes above also have non-retaliation provisions which make it unlawful to retaliate against an employee for making claims of discrimination.
These non-retaliation provisions also protect employees who seek to protect other employees by objecting to discriminations which that employee is being subjected or acting as a witness on behalf of an employee asserting a discrimination claim.
It is also unlawful to retaliate against an employee, for example, for filing a workers’ compensation claim, for seeking leave under the Family and Medical Leave Act, for making complaints to OSHA, for engaging in protected union activities or by engaging in whistleblower activities.
There are many diverse federal and state statutes dealing with all of these types of retaliation which are too complex and detailed to go into in this article. The remedies, procedural requirements and timeline for pursuing claims differ under these different statutes. Accordingly, it is important that you contact a lawyer immediately to figure out what your rights may be.
For example, in workers’ compensation retaliation cases, action must be taken within ninety days to put your employer on notice that you are going to file a potential retaliation claim.
Wrongful Discharge in Violation of Public Policy
In addition to all of the statutory procedures, Ohio also recognizes a claim for wrongful discharge in violation of public policy. The Ohio Supreme Court has recognized that there are certain circumstances where the legislature may not have adopted specific statutory prohibitions against discharging employees under certain circumstances, but public policy dictates that terminating an employee, under those circumstances, would be unlawful. For example, a number of courts have held that it is unlawful to terminate an employee for consulting with a lawyer. Claims for wrongful discharge in violation of public policy have a four-year statute of limitations. A prevailing plaintiff is entitled to recover economic damages, emotional distress damages, and punitive damages.
Altering the ‘Employment at Will’ Doctrine
It is possible for an employee to alter their status as an employee at will by entering into a contract with their employer. In most instances, the mere fact that the company adopts a handbook or specific policies dealing with discharge do not create a contract, and the employer does not necessarily need to follow those employee policies in discharging an employee.
Collective Bargaining Agreements
The most common form of employment contract altering the employment at will doctrine is a collective bargaining agreement entered into between a union and a company. In most instances, the collective bargaining agreement will place limitations on an employer that will require them to have just cause to terminate an employee. In those circumstances, an employee does not necessarily need to prove discrimination or retaliation, but, rather, merely must demonstrate that they are not guilty of the offense they are being charged with or that that offense does not justify termination. However, under most collective bargaining agreements the employee’s exclusive remedy is going to be the grievance and arbitration procedure set forth in the agreement rather than a lawsuit in court.
It is also possible for individual employees to enter into employment contracts, although, as a practical matter, very few companies do that. It is generally high ranking, well-compensated employees who have individual employment contracts. An employee generally has to have sufficient leverage with the company to persuade the company to provide them with an employment contract. Some companies also offer their employees’ employment contracts that do not alter the employment at will status of the employee but do provide, for example, that any claims an employee has against the company will be arbitrated.
Consult with an Expert Employment Law Attorney Immediately
As you can see, the answer to the question “I’ve been terminated, what can I do?” is not an easy one.
- First, you have to determine whether you have an employment contract or you are an employee at will.
- Second, you have to determine whether you are being discriminated or retaliated against for unlawful reasons.
- Finally, you have to determine what the appropriate procedural remedies are and the time limits in which to bring your claims.
In short, you need to contact a lawyer as soon as possible to find out what remedies, if any, you have as a result of your termination.
If you have been terminated from employment and believe that it was a wrongful discharge, it is in your best interest to speak with an experienced Ohio employment lawyer right away.
The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation