National Boss' Day: Here’s to Good Bosses, and a warning about Bad Ones and "Employment at Will” by Kurt Young
Monday October 16th is National Boss' Day. The creation of National Bosses Day can be traced back to Patricia Bays Haroski, who registered "National Boss' Day" with the U.S. Chamber of Commerce in 1958. She was working as a secretary for State Farm Insurance Company in Deerfield, Illinois for her father, She chose October 16, which was her father's birthday. The purpose was to have a special day in the workplace is to show the appreciation for their bosses and attempt to improve intra-office relationships between managers and their employees.
And I have to say as the “boss” around here, my team has done some very nice things for me on that day. I’ve gotten funny cards, some great food, even some great refreshments and more. But my favorite gift has to be the time at our old office that while I was out of town, the team got together and repainted the one wall of my office the colors of my favorite NFL team. A picture of their handiwork is at the end.
But I didn’t want to just do a, aren’t we bosses cool post. No, part of our job as Attorneys is to educate you about the law. And not to talk about a negative thing on what’s supposed to be a fun day, I can’t tell you how many times in my career I have had to deliver a horrible wake up call to clients about the concept of Employment at Will. So, I decided on the day we celebrate the good bosses, we should also throw out some information about just how bad the boss can be, and it still be 100% legal. And it's far worse in almost all of the Fifty States than you think.
In Ohio and pretty much every state, unless you have a specific employment contract or a collective bargaining agreement, you are an employee at will. Now, that does mean you are allowed in those circumstances to tell the bad boss to take this job and shove it. But that’s not we as lawyers are usually worried about. It’s about people thinking they have protections they just don’t have.
Do you have an employee manual at work, we do. And if you look closely at every well written employee manual around you’re going to find, somewhere they can prove you saw it, a statement that “this is not an employment contract” or some variation of that. What does that mean? Well simply, they can enforce the manual against you and you are expected to follow it. Them, well not so much.
The simplest way to explain Employment at Will is to use the following statement, it means that your boss can fire or demote you for any reason they want, at any time they want, with or without any cause, unless you can prove they violated a specific Federal or State law. I can’t tell you how many people I’ve had to explain to that they don’t have to prove they had a good reason to let you go.
My favorite way to explain that to them involves my friend, colleague and co-counsel Russ Gerney. I would never do what I am about to say because Russ is a friend, a great attorney, and oh wait no truly an employee. He’s what’s called of counsel. Meaning we work together and share fees and responsibilities across our cases. But we also run our own practices. But we will, for the sake of illustration say Russ actually was an employee of mine.
What’s Russ’ horrible sin? Well Russ loves a certain professional football team, about 3 ½ hour drive east from Toledo. He has a picture of their stadium up in his office. They are the bitter divisional rivals of my favorite football team, a 3 hour drive south of Toledo and ditto on the picture of the stadium up in my office. To say our teams don’t like each other is, well an understatement. As someone who represents people who get hurt on the job, while I do enjoy football, I cringe watching this game.
So, let’s say the horrible team from the east beats up on my amazing team from the south on Sunday (and I hate to admit this, but based upon past history, it’s about a 64% chance that is going to happen). I come into work on Monday and fire Russ for being a fan of that team. Can he sue me for “wrongful termination”? Hate to tell you but NO. Liking the wrong football team is not something that is a prohibited reason for firing someone.
Don’t believe me, Google the name John Stone. John was a salesman for a Chicago area car dealership. He was a good salesman per news reports, and never had any write ups. But in 2011, the day after the Packers beat the Bears in the NFC Championship game for the 2010-11 season, on the way to beating (yes I was very happy to be able to say this) Russ’ favorite team in the Super Bowl he committed an unforgivable offense in the eyes of his employer. John went to work wearing his grandfather’s Packers. The dealership spent $20,000 a month to have an advertising relationship with the Bears. His boss demanded he remove the tie, when he didn’t, he was fired.
Now, switching back to Russ, from John who had no legal rights in Illinois for “wrongful termination”, neither would Russ. Ohio is an Employment at Will state. So, Russ couldn’t sue to get his lost wages and job back. If he was otherwise entitled to unemployment, he’d get it, as firing someone for being a fan of another football team, even the Steelers, is not a good reason to let them go. Also the whole Russ’ practice includes unemployment cases and he’s pretty good at it according to our clients.
Worse still, in my area of practice, Ohio Workers’ Compensation, not only is there very minimal protections for workers (I’ll talk about it in a paragraph or so) there was an incentive for firing a worker after a workplace injury. In 1995, the Ohio Supreme Court in State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 403, 650 N.E.2d 469, found that an employee who violated a written work rule was not entitled to be paid for their time off work via Temporary Total Disability Benefits. The employer’s of the state of Ohio, well they got really interested in that really quickly.
I can tell you years ago I was seated a table away from a group of former Justices of the Ohio Supreme Court. They were there to watch an organization I am a leader in, give a lifetime achievement award to one of their fellow justices. And one of them was showing the newsletter of his former law firm, a big, employer’s side firm, with basically a cookbook on how to avoid paying workers’ compensation by Temporary Total by firing an employee. And how they needed to do something about it.
I can’t count how many court cases from the Ohio Supreme Court and various courts of appeals have tried to determine what to do about this. The same is true for the hundreds of Workers’ Compensation Hearings I have attended where this has been argued against our client. But I can tell you that the Louisiana-Pacific case was still considered good law until last year. And it wasn’t the court system that took care of this. The Ohio General Assembly, thanks to the efforts of amazing attorneys on both sides of our practice, finally stepped into this mess and on September 23rd, and tried to wipe the slate clean of all those cases and go back to what we should be considering, if you take away everything else would the allowed conditions in the claim keep the injured worker from doing his former job. I say supposed to, because a compromise short cut in some language is likely going to be something we fight about the meaning of for years to come.
So, yes, even if you’re hurt on the job, they can fire you. Now, the Workers’ Compensation Law does have an exception to Employment at Will not allowing your employer to fire you as retaliation for filing a claim. But the exception, like many is very limited. For instance, for Ninety (90%) of Ohio's employers, you have to beat them to filing a claim before they fire you, so firing you the minute you got hurt, for getting hurt beats that. And you have very short time frames to put them on notice of your intent to sue them and file the lawsuit. And of course you have to prove all of it.
And that’s true about all of these exceptions. They are very technical and limited, e.g. I’m over 45, years old, an employer can’t fire me in favor of a younger person because of my age. But they could most likely get away with hiring me in favor of a younger person, or even someone over 45 as well, because of age.
So what should you do if you’re terminated. Well, first of all, keep your cool. Gather as much information together about who told you what on what dates and anyone who can support you as to being in the right them in the wrong, and contact us. Russ again has a very good track record in helping people navigate the Unemployment compensation systems of Ohio and Pennsylvania.
If you are one of our Workers’ Compensation clients call us right away as we can sometimes get the employer’s legal representatives to reconsider that decision. And we can point you to an excellent colleague who has helped many people finds those exceptions. Call us at 419-244-7885, current client or not, and we can help you figure out what your rights are.
I can tell you after going on thirty years of practice, seeing some of the worst of the worst of employment and workplace injury situations, I still believe that the majority of bosses out there care and deserve a little nod one day out of the year. So here’s to the good ones, my team tells me I am one, and please let us help protect you from the bad ones.