1. What legal protection does Ohio provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Ohio recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that is contrary to the public policy of Ohio. An employee has a cause of action in other words, the employee may sue–for wrongful discharge when the discharge violates public policy. This protection extends to whistleblowers in some cases. An employee must first identify a clear public policy expressed in a constitutional provision, statute, regulation, or judicial decision. The employee must then show that her dismissal would jeopardize that public policy.
To determine what constitutes public policy, Ohio courts will look to statutes, constitutional provisions, regulations, and judicial decisions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. a criminal statute). So, for example, because an Ohio statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Ohio’s public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Ohio General Assembly has adopted statutory protection for certain activities. Notably, Ohio has a general whistleblower protection statute that protects whistleblowers who report suspected felonies, crimes that may cause physical harm, and crimes that may produce a hazard to the public health or safety. Also, several other Ohio statutes contain anti-retaliation provisions. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: abuse or neglect of residents at health-care facility, discrimination, minimum wage, wage discrimination, and workers’ compensation.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that would jeopardize the public policy of the state of Ohio. Specifically, employees are protected from retaliatory discharge for the following protected activities:
- Reporting unsafe working conditions to government agencies
- Reporting suspected illegal conduct
- Testifying truthfully against an employer
- Filing lawsuit over wages
- Consulting an attorney about possible lawsuit
- Filing a workers’ compensation claim
Statutory Protections
General Whistleblower Protection: An employee may not be retaliated against (e.g. discharged, suspended, transferred, denied a promotion, denied salary increases) for the following protected activities:
- Reporting criminal violations of four enumerated Ohio laws. If an employee becomes aware of criminal violations of four Ohio laws Air Pollution Control laws, Solid and Hazardous Wastes laws, Safe Drinking Water laws, or Water Pollution Control laws an employee may not be retaliated against for notifying, either orally or in writing, an appropriate public official or agency. An employee is not required to inform her employer of the violation.
- Reporting suspected criminal offenses that are likely to cause an imminent risk of physical harm to humans or produce a hazard to the public health/safety. If an employee becomes aware of criminal violations of any state, federal, or local law (other than the four enumerated laws above) and the employee reasonably believes that the conduct causes an imminent risk of physical harm to persons or produces a hazard to the public health/safety, the employee may not be retaliated against for notifying the appropriate officials, provided that the employee meets the statutory requirements. To receive protection, the employee must first notify a supervisor or other responsible officer of the suspected criminal offense. This report must be made in writing. The employer then has 24 hours to correct the violation and inform you of the correction. If the employer does not correct the violation, the employee may file a written report with an appropriate public official or agency.
- Reporting suspected felonies. If an employee becomes aware of criminal violations of any state, federal, or local law (other than the four enumerated laws above) and the employee reasonably believes that the conduct is a felony, the employee may not be retaliated against for notifying the appropriate officials, provided that the employee meets the statutory requirements. To receive protection, the employee must first notify a supervisor or other responsible officer of the suspected felony. This report must be made in writing. The employer then has 24 hoursto correct the violation and inform of you of the correction. If the employer does not correct the violation, the employee may file a written report with an appropriate public official or agency.
- Reporting a co-worker’s criminal activities: If an employee learns of a co-worker’s conduct that either violates the law or is against company policy, reporting these violations may be protected if the following conditions are satisfied.
- The employee must reasonably believe that the co-worker’s conduct is either (1) a criminal offense that is likely to cause an imminent risk of physical harm to persons, or produce a hazard to public health or safety, or (2) a felony.
- The employee must first notify a supervisor or other responsible officer. This report must be made in writing.
Additionally, an employee may not be retaliated against for making an inquiry or taking any other action to ensure the accuracy of reported information. An employee is required to make a reasonable and good faith effort to determine the accuracy of any reported information.
Note that where the whistleblower protection statute only requires an employee’s “reasonable belief” that the employer (or a co-worker) was violating the law, the employee’s suspicion does not need to turn out to be true. An employee is still protected from retaliation if it turns out that the employer (or a co-worker) was not violating the law, so long as the employee’s suspicion was reasonable. Ohio Rev. Code Ann. § 4113.52.
Abuse or Neglect of Resident at Health-Care Facility: An employee may not be retaliated against for reporting, in good faith, suspected abuse or neglect of a resident, or misappropriation of a resident’s property. Nor may an employee be retaliated against for participating in a hearing or judicial proceeding concerning suspected abuse, neglect, or misappropriation. Ohio Rev. Code Ann. § 3721.24.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory employment practice. Nor may an employee be discharged (or discriminated against) in retaliation for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing concerning Ohio’s laws against employment discrimination. Under Ohio law, it is unlawful for an employer to discriminate on the basis of race, color, religion, sex, national origin, disability, age, or ancestry. Ohio Rev. Code Ann. § 4112.02(I).
Labor Organizations: An employee may not be retaliated against for participating in or joining a labor organization. Ohio Rev. Code Ann. § 4117.11.
Long-Term Care Ombuds: An employee of a long-term care facility may not be retaliated against for participating in an investigation by the Ombuds Office or for filing a complaint with the Office. Ohio Rev. Code Ann. § 173.24.
Long Term Care Facility (Abuse): An employee may not be retaliated against for reporting abuse of a resident of a long-term care facility. Ohio Rev. Code Ann. § 3721.24.
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning enforcement of the state’s minimum wage laws. The complaint may be made to either the employer or to the Director of Commerce. Ohio Rev. Code Ann. § 4111.13(B).
Public Employees: A public employee may not be retaliated against for reporting a misuse of funds or violation of law. Ohio Rev. Code. Ann. § 124.341.
Wage Discrimination: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning the enforcement of Ohio’s wage discrimination laws. Under these laws, an employer may not discriminate on the basis of race, color, religion, sex, age, national origin, or ancestry in the payment of wages. Ohio Rev. Code Ann. § 4111.17(D).
Workers’ Compensation: An employee may not be discharged (or penalized) in retaliation for filing a claim, instituting a proceeding, or testifying in a proceeding under the Workers’ Compensation Act. Ohio Rev. Code Ann. § 4123.90.
Workplace Safety: An employee may not be retaliated against for reporting a violation of the Public Employment Risk Reduction Program. Ohio Rev. Code Ann. § 4167.13.
3. How do I file a whistleblower or retaliation claim in Ohio?
Generally: An employee may file a wrongful termination lawsuit in an appropriate court. If the lawsuit is based on a statutory protection, the lawsuit must be filed within 6 years of the retaliatory action, unless otherwise specified by the particular statute. ⚖ If the lawsuit is based on a common law protection (i.e. a wrongful discharge under the public policy exception), the lawsuit must be filed within 4 years of the retaliatory action. ⚖
General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.
Discrimination: An employee may file a written complaint with the Ohio Civil Rights Commission (OCRC). The complaint must be filed within 6 months of the retaliatory action. The OCRC will investigate and attempt to resolve the matter.
The OCRC provides a guide on how to file a retaliation charge of discrimination on their web site. The OCRC can be reached toll-free at 1-888-278-7101.
Alternatively, an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 6 years of the retaliatory action. If you choose to file a lawsuit, you should contact a lawyer.
Wage Discrimination: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 1 year of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.
Workers’ Compensation: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 180 days of the retaliatory action. However, the employee must inform her employer of the claimed violation (for retaliation) within 90 days of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.