Employment At Will In Ohio FD 32 AP 789352fd f5aa 4388 b161 8f14e2f3fa94

EMPLOYMENT

AT

WILL

IN

OHIO:

WORKING

FROM

WITHIN

The

employment

at-will

doctrine

has

undergone

significant

modification

in

recent

years.

The

debate

rages

on

as

to

whether

the

rule

should remain

in-

tact',

be

modified

2,

or

be

abrogated

altogether.'

Those

states

which

have

modified

the

rule

have

differed

as

to

the

scope

of

protection

accorded

the

discharged

employee.

This

comment

seeks

to

measure the

parameters

of

Ohio's

exceptions to

the

at-will

rule

in

relation

to

other

states'

views on

this

issue.

Also included

is

an

examination

of

the

interplay

between

the

legislature

and

the

judiciary

in

affecting

change

in

Ohio.

A

proposal

designed

to

"solidify"

the

public

policy

exception to

the

at-will

rule

after

Phung

v.

Waste

Management,

Inc.

4,

a

recent

Ohio

Supreme

Court

case,

will

also

be

presented.

TRACING

THE

HISTORY

OF

THE

RULE

At

common

law,

the

English

courts

indulged

in

the

presumption

that

a

general

or

indefinite hiring

was

for

one

year

unless the

parties

intended

other-

wise.'

However, during

the

latter

part

of the

19th

century,

American

courts

departed

from

this

presumption

in

favor

of "Wood's

Rule,"

named

for

its

author

Horace

G.

Wood.

6

The

rule proposed

a

contrary

presumption

that

"a

general

or

indefinite

hiring

is

prima

facie

a

hiring

at

will

and,

if

the

servant

'See

generally

Epstein

&

Paul,

In

Defense

of

Employment

at Will.

51

U. CHI.

L.

REV.

947

(1984).

'See

generally

Blades,

Employment

at

Will

v.

Individual

Freedom:

On

Limiting

the

Abusive

Exercise

of

Em.

ployer

Power.

67

COLUM.

L.

REV.

1404

(1967);

Comment,

Protecting

the

Private

Sector

Employee

who

"'Blows

the

Whistle'"

A

Cause

of

Action

Based

Upon

the Determinants

of

Public

Policy,

1977 Wis.

L.

REV.

777

(1977)

(hereinafter

referred

to

as

The

Private

Sector

At

Will

Employee);

Note,

Guidelines

For

A

Public

Policy

Exception

To The

Employment

At

Will

Rule.

The

Wrongful

Discharge

Tort,

13 CONN.

L.

REV.

617

(1981)

(hereinafter

referred

to as

Note,

Guidelines

For

a

Public

Policy

Exception);

Comment,

Wrongful

Dis-

charge

of

Employees

Terminable

at Will

-

A

New

Theory

of

Liability

in

Arkansas,

34

ARK.

L.

REV.

729

(1981);

Note,

A

Common

Law

Action

for

the

Abusively

Discharged

Employee, 26

HASTINGS

L.J.

1435

(1975).

'See

generally

Mauk,

Wrongful

Discharge:

The

Erosion

of

100 Years

of

Employer

Privilege,

21

IDAHo

L.

REV.

201

(1985);

Summers,

Individual

Protection

Against

Unjust

Dismissal:

Time

For A

Statute,

62

VA.

L.

REV.

481

(1976);

Peck,

Unjust

Discharges

From Employment: A

Necessary Change

in

the

Law,

40

OHIO

ST.

L.J.

I

(1979);

Bellace,

A

Right

of

Fair

Dismissal:

Enforcing

a

Statutory

Guarantee,

16

U.

MICH.

J.L.

REF.

207

(1983);

Comment,

The

Employment

At

Will

Doctrine:

Time

To

Collapse

Another

Citadel,

I 1

U.

DAY-

TON

L.

REV.

399

(1986)

(hereinafter

referred

to

as

Time

to

Collapse

Another

Citadel);

Note,

Defining Public

Policy

Torts

in

At-Will

Dismissals

34

STAN.

L.

REV.

153 (1981)

(hereinafter

referred

to

as

Note,

Defining

Public

Policy

Torts);

Note,

Protecting

At

Will

Employees

Against

Wrongful

Discharge:

The

Duty

To

Ter-

minate

Only

in

Good

Faith,

93

HARV.

L.

REV.

1816

(1980)

(hereinafter

referred

to as

The

Duty

to

Terminate

Only

in

Good

Faith);

Note,

Protecting

Employees

At

Will

Against

Wrongful

Discharge:

The

Public

Policy

Exception, 96

HARV.

L.

REV.

1931

(1983)

(hereinafter

referred

to

as

Protecting

Employees

At

Will.)

423

Ohio

St.

3d

100,

491

N.E.2d

1114

(1986);

see

infra

notes

73-83

and

accompanying text.

'See

Note,

Implied

Contract

Rights

to

Job

Security,

26

STAN.

L.

REV.

335,340

(1974)

(hereinafter

referred

to

as

Implied

Contract Rights);

Protecting

Employees

At

Will.

supra

note

3,

at

1933.

See

also

Feinman,

The

Development

of

the

Employment

at

Will

Rule, 20

AM.

J.

LEGAL

HisT.

118,

119-120

(1976),

which

quotes

Blackstone

as

follows:

If

the hiring

be

general,

without

any

particular

time

limited,

the

law

construes

it

to

be

a

hiring for

a

year;

upon

a

principle

of

natural equity,

that

the

servant

shall

serve,

and the

master maintain

him,

throughout

all

the

revolutions

of

the

respective

seasons, as

well

when

there

is

work

to

be

done

as

when

there

is

not.

1H.

WOOD,

MASTER

AND

SERVANT

(1st

ed.

1877).

AKRON

LAW

REVIEW

seeks

to

make

it

out

a

yearly hiring,

the

burden

is

upon

him to

establish

it

by

proof..

.'7

Courts

soon

thereafter

embraced

this

rule,

giving

it

universal

ap-

plication."

Although

Wood

offered

no justifications

or

policy

grounds

for

the

at-will

rule,

9

commentators

have hypothesized

that

it

comported

with

the

laissez-faire

and

freedom

of

contract

ideologies

existent

in

the

late

nineteenth

and early

twentieth

centuries.

0

Judicial

adoption

of the

at-will

rule

facilitated

the

needs

of a rapidly

industrializing economy

because employer

was given

a

free

hand

to

manage

the

workplace."

Finally,

contract

doctrines

such as

mutuality

of

obligation

and

consideration acted

as

further

legal

justifications

for

the

at-will

rule.

12

In

the

course

of

time,

unionization"

and

governmental

regulation

of

the

workplace"

4

have somewhat

alleviated

the

harsh

effects

of

the

at-will

rule.

Despite

these

mechanisms,

approximately seventy

million people

remain

vulnerable

to

discharge

under

the

rule. 5

For

this

reason,

discharged

employees

have

sought

judicial

intervention

as

an

alternative

means

of

modifying

the

time-honored

at-will

rule.

THE

PUBLIC POLICY

EXCEPTION

Definition/Sources

of

Public Policy

The

judicially

created

cause

of

action

for

wrongful

discharge"

is

predicated upon

the

employer's

discharge

of

an

employee

who

engages

in

some

'Id.

at

§

134.

'See

generally

Feinman,

supra

note

5,

at

126

[citing

1

C.

LABATr,

MASTER AND

SERVANT,

§

159

n.2

(2d

ed.

1913)];

See

also

I

WILLISTON, CONTRACTS,

§

39

(rev.

ed.

1938).

'See

Implied

Contract

Rights,

supra

note

5,

at

341;

Feinman,

supra

note

5,

at

126.

1"See

Implied

Contract

Rights,

supra

note

5,

at

343;

Mauk,

supra

note

3,

at

202;

Feinman,

supra

note

5,

at

126;

Protecting

Employees

at Will,

supra

note

3,

at

1933.

"See

Murg

&

Scharman,

Employment

At

Will:

Do

The

Exceptions

Overwhelm

the

Rule?

23

B.C.L.

REV.

329, 335

(1982)

[citing

G.

BLOOM

&

H.

NORTHRUP,

EcONOMIcSOF

LABOR

RELATIONS

227-316

(7th

ed.

1973)]

"See

Marg

&

Scharman,

supra

note

11,

at

336-338.

The doctrine

of

mutuality

provides

that

"both

parties

to

a

contract

must

be

bound

or

neither

is

bound."

A.

CORBIN,

I

CORBIN

ON

CONTRACTS

§

152

(1950).

Courts

in

applying

this

doctrine

to

the

employer-employee

relationship

reasoned

that

since

the

employee was

not

bound

to provide

services,

the

employer

should

be

under

no

duty

to

provide

employment

in

an

at

will

setting.

Marg

and

Scharman,

supra

note

11,

at

336-337.

However,

treatise

writers such

as

J.

CALAMARI

AND

J.

PERILLO,

CONTRACTS

§

4-14

(2d

ed.

1977)

have

criticized

the

doctrine

as

a

"misleading

notion

that

both

par-

ties

must

be

'bound',"

and

have urged

its

abandonment.

Id.

See

also

IA

CORBIN

ON

CONTRACTS,

§

152

(1963

&

Supp.

1971);

RESTATEMENT

(SECOND)

OF

CONTRACTS

§

81

(1979);

See

generally

Note,

Mutuality

of

Obliga-

tion

in

Bilateral

Contracts

at

Law,

25

COLUM.

L.

REV.

705

(1925).

"See

Protecting

At

Will

Employees,

supra

note

3,

at

1934:

"Collective bargaining agreements

protect

ap-

proximately

twenty-five

percent of

the

nonagricultural

United

States

labor

force."

"See

Marg

&

Scharman,

supra

note

11,

at

338

n.54

and

339

n.60

for

a

list

of

federal

statutes

which protect

workers

from

being

discharged

for

specified

activities.

"See

Protecting

At

Will

Employees,

supra

note

3,

at

1934;

St.

Antoine,

Employee

Terminations and the

Erosion

of

theAt

WillDoctrine,

in

DEVELOPING

RIGHTS

OF

EMPLOYEES

IN

THE

WORKPLACE,

36-38

(C. Baka-

ly

&

J.

Feerick

eds.

1981).

"See, e.g.,

Adler

v.

American

Standard

Corp.,

291

Md.

31,

36,

432 A.2d

464,

467

n.2

(Ct.

App.

1981)

(although

courts

have

described

such

discharges

as

"wrongful,"

"abusive,"

or

"retaliatory,"

use

of

the

phrase

"wrongful

discharge"

covers

all

three

characterizations.)

[Vol.

20:3

type

of

activity which

is

protected

by

the

"public

policy"

of

that

state."

Generally,

public

policy

refers

to

"the

principle

which declares

that

no

one

can

lawfully

do

that

which

has

a

tendency

to

be

injurious

to

the

public

welfare."

'"

It

concerns

the

"community

common

sense

and

common

conscience,"'

9

and

protects

against

acts

that

lend

themselves

to

"injustice

or

oppression,

restraint

of liberty,

commerce

and

natural

or

legal

right."' Such

a

broad definition of

what

constitutes

public

policy

caused Justice

Sutherland

in

Patton

v.

United

States

2'

to remark

that:

.....

the

theory

of

public

policy

embodies

a

doctrine

of

vague

and

variable

quality,

and

unless

deducible

in

the

given

circumstances

from

constitutional

or

statutory

provisions, should

be

accepted

as

the

basis

of

a

judicial

determination,

if

at

all,

only

with the

utmost

circumspection.

The

public

policy

of

one

generation

may

not,

under

changed conditions,

be

the

public

policy

of

another.

22

As

it

relates

to the employment

relationship,

finding

a

workable

definition

of "public

policy"

determines

whether

a

state court

will

sanction

the public

policy

based

wrongful discharge

tort.

3

In

states adopting

this

exception,

the

sources

of

public

policy

from which

courts

draw

support

will

determine

whether

a

specific

employer-employee

fact

pattern

will

justify

the

wrongful

discharge limitation.

'

Courts

have

differed as

to

the

sources

of bona

fide

state

expressions

of

public policy,

and

how

clear or

substantial

the

public

policy

source

must

be

to

support

a

wrongful

discharge

claim.

5

"Murg

&

Scharman,

supra

note

11,

at

343-44.

"Campbell

v.

Monumental

Life

Ins.

Co.,

32

Ohio

L.

Abs.

107,

108,

34

N.E.2d

268,

274

(1940);

See

also

Adler,

291

Md.

at

45,

432

A.2d

at

472;

Maryland

National

Capital

Park

and Planning

Commission

v.

Washington

National

Arena,

282

Md.

588,

605,

606,

386

A.2d

1216,

1228-29 (1978).

"Snyder

v.

Ridge

Hill

Memorial

Park,

61

Ohio

App.

271,

287,

22

N.E.

2d 559, 566

(1938).

"Stocker

v.

Henne,

11

Ohio

Dec.

733,

736-37,

8

Ohio

N.P.

514,

516

(C.P.

1901).

21281

U.S.

276

(1930).

'Id.

at

306.

See

also

Lamont

Building

Co.

v.

Court,

147

Ohio

St.

183,

185,

70

N.E.

2d

447,

448

(1946)

("public

policy

is

an uncertain

and

indefinite

term

...

[and judges]

must

take

care

not

to

infringe

on

the

rights

of

parties

to

make

contracts

..

.);

Hinrichs

v.

Tranquilaire

Hospital,

352 So.

2d

1130,

1131

(Ala.

1977)

(public

policy

is

"too

vague

a

concept"

to

justify

allowing

for

a

wrongful discharge exception

to

an

at

will

employment

agreement);

Maryland-National

Capital Park,

282

Md.

at

605-606,

386

A.2d

at

1228

(1978)

(there

is

no

true

workable

definition of

public

policy,

and

as

a

result,

judges

are

forced

to

discern

public policy "based on

nothing

more

than

their

own

personal

experience

and

intellectual capacity.")

"Protecting

Employees

At

Will,

supra

note

3,

at

1947.

'See

Guidelines

for

A

Public

Policy

Exception,

supra

note

2,

at

622-23.

The

author

identifies

seven

origins

of public

policy

as

follows:

"1)

[public

policy

derivedl

from no

source;

2)

from

the

social

desirability

of

an

ac-

tivity

or the

importance

of

a

community

interest;

3)

from

related, but

not

directly implicated,

constitutional

and

statutory

provisions

and

case

law;

4)

from

common

law

principles

conferring

a

right

on

an

employee

or

imposing

an

obligation

on

an

employer;

5)

from

a

statute

conferring

a

right

on

the

employee

or making

il-

legal

an

act

performed

by

an

employee

at

the

request of

his

employer

6)

from

a

statute

which

not

only

makes

illegal

the

act

the

employer asks

the

employee

to

perform,

but

also

subjects

the

employee

to

criminal

liabili-

ty;

and

7)

from

a

statute

that

prohibits the

discharge."

Id.

at

623.

'See

generally

Mauk,

supra

note

3,

at

229-245;

Guidelines

For

A

Public

Policy

Exception,

supra

note

2,

at

622-623;

Murg

&

Scharman,

supra

note

11,

at

343-355;

Protecting

Employees

At

Will,

supra

note

3,

at

1936-1937;

Defining

Public

Policy

Torts, supra

note

3,

at

155-158;

The

Private

Sector

At

Will

Employee,

supra

note

2,

at

787-799;

Time

to

Collapse

Another

Citadel,

supra

note

3,

at

404.

COMMENTS

Winter,

19871

AKRON

LAW

REVIEW

Undoubtedly,

the most

wide-ranging

and

least principled

basis

for

deduc-

ing

public

policy

concerns

is

through

judicial

self-expression.

For

example,

the

Illinois

Supreme

Court,

in

Palmateer

v.

International

Harvester

Co.

26

held

that

the

plaintiff-employee,

who

was

fired

in

retaliation

for

reporting

a

fellow

employee

suspected

of

criminal

activity

to

law

enforcement

officials,

stated

a

cause

of action

for

wrongful

discharge.

The

impetus

for the

court's

decision

was

that

public

policy

favored

citizen

cooperation

with

law

enforcement

of-

ficials in

order

to

expose

crime

and

to

enforce

criminal

statutes.

27

This

public

policy

notion,

although

deemed

"important"

or

"fundamental,"

28

had

no

con-

stitutional

or

statutory

basis

for

its

recognition.

29

Similarly,

the New

Hampshire

Supreme

Court

in

Monge

v.

Beebe

Rubber

Co.

30

modified the

at-will

rule

without

offering

any

constitutional,

statutory,

or

common

law

foundation

for

its

holding.

Although

noting

that

changing

legal,

social,

and

economic

conditions

had

significantly

altered

the

traditional

employer-employee

relationship,

3

"

the

court

cited

no

precedent

for the

blanket

rule

that

"in

all

employment

contracts,

the

employer's

interest

in

running

his

business

as

he

sees

fit

must

be

balanced against

the

interest

of

the

employee

in

his

employment

and

the public's

interest

in

maintaining

a

proper

balance

be-

tween the

two."

32

Thus,

any

terminations

motivated

by

bad-faith

or malice

contravened

the

public's

best interests,

and

struck

the

balance

in

favor

of

an

employee

claim

for

breach

of

contract.

3

The

Monge

Court

placed

misguided

reliance

on

two

foreign

cases

3

"

in

support

of

its

holding,

as

these

decisions had

created

a

wrongful

discharge

remedy

from

expressions

of

public

policy

implied

from

statutory

provisions.

5

A

major

drawback

to

judicially-defined

public

policy

is

its

lack of

legislative

input

for

broad

scale

"reapportionment

of

legal

rights within

the

employment

relationship."

6

Employer

breaches

of

public

policy

are

considered

breaches

of

duties

imposed by

law

and

require

the

judiciary

to

scrutinize

the

2685

I11.

2d

124,

133

421

N.E.2d

876,

880

(1981).

"Id.

at

132, 421

NE.2d

at

880.

2SId.

29

1d.

-

114

N.H.

130,

316

A.2d

549

(1974).

"

1Monge,

114

N.H.

at

132-33,

316

A.2d

at

551.

2Id.

"Id.

Monge

has

been criticized

for its

lack

of

clarity

as

to

whether

it

created a

public

policy

exception

grounded

in

tort,

or

a

"bad-faith"

limitation sounding

in

contract.

See

Mauk,

supra

note

3,

at

207

(explaining

that

Monge

represents

a

tort-contract

hybrid,

and

that

courts

have

cited

Monge

as

supportive

of both the

public

policy

(tort)

and

bad-faith

(contract)

limitation

on

the

at-will

rule).

1

4

Monge,

114

N.H.

at

133,

316

A.2d

at

551;

See

Frampton

v.

Central Indiana Gas

Co., 260

Ind.

249,

297

N.E.

2d 425

(1973);

Petermann

v.

International

Brotherhood of

Teamsters,

174

Cal.

App.

2d

184,

344

P.2d

25

(1959).

See

infra

notes

43-45,

59-61,

and

accompanying

text.

"See

infra

notes

43-45,

59-61

and

accompanying

text.

IThe

Private

Sector

At

Will

Employee,

supra

note

2,

at

797.

"Mauk,

supra

note

3,

at

229.

[Vol.

20:3

social

acceptability of the employer's

conduct

38

in

reviewing

a

wrongful

discharge

claim.

This

process lends

itself

to

an

ad

hoc

adjudication

of

discharges

within

the

employment relationship.

39

Consequently, the

employer

is

left

with no

clear guidelines

as

to

what

types

of

discharge

will

ultimately

result

in

a

successful

wrongful

discharge

claim.

Recognizing the

rather arbitrary

and

unpredictable

nature

of

judicially-

formulated

notions

of

public

policy,

courts

have

looked

to

positive

law

°

for

guidance

in

shaping

the contours

of

public

policy

in

the

employment setting.

Statutes,

which are considered

the best evidentiary

sources

of

public

policy,

'

have

provided

the most

common

method

of

gathering

public

policy

from

which

a

wrongful

discharge remedy

is

created."

2

Wrongful

discharge

claims

for

breaches

of

public

policy

that

are

derived

from

legislative

enactments

can

be

positioned

into

two

broad

categories.

The

first

category

concerns

statutes

which

confer

a

right

to

an

employee

within

the

ambit of

the

employment relationship,

such

as

the

right

to

file

a

worker

com-

pensation

claim.

Frampton

v.

Central Indiana

Gas

Co.

3

concerned

an

employee

who

was

discharged

after

filing

such

a

claim.

The Indiana

Supreme

Court

noted

that

worker's

compensation

was

enacted

for

the

benefit

of

employees

and

unless

an

employee was given

a

wrongful discharge remedy

to

combat

a

retaliatory

discharge,

"a

deleterious

effect

on the

exercise

of

a

statutory

right""

would

occur.

The

important

public

policy

breached

in

Frampton

was

the

unfettered

right

on

the

part

of

the

employee

to

file

a com-

pensation

claim

pursuant

to

the

Indiana

Workman's Compensation Act.

'

The

Michigan

and

Illinois

courts

followed

the

Frampton

court's

lead

in

Sventko

v.

Kroger

Co."

and

Kelsay

v.

Motorola,

Inc.

4

'

These

cases

also

in-

"Defining

Public

Policy

Torts,

supra

note

3,

at

158.

"See

Protecting

The

Private

Sector

At

Will

Employee.

supra

note

2,

at

798.

'Positive

law

refers

to

"[llaw

actually and

specifically

enacted

or

adopted

by

proper

authority

for

the govern-

ment

of

an

organized

jural

society."

BLACK'S

LAw

DICTIONARY

1046

(5th

ed.

1979).

This definition

would

in-

clude

constitutions

and

statutes.

"See

2A

S.

SUTHERLAND, STATUTORY

CONSTRUCTION, §

56.01

(4th

ed.

1984)

[hereinafter

referred

to

as

STATUTORY

CONSTRUCTION1.

41See

generally

id.

at

§

56.02,

where the

author

states:

A

classic

example

of

the

use

of

public

policy

derived

from

statutes

as

a

legal

determinant

occurs

in

the

law

pertaining

to

the question

of

what

contracts

are

unenforceable

because

of

illegality.

Contracts

made

in

violation

of

a

criminal

statute

are

generally

held

to

be

illegal

on

the

basis

of statutory

public

policy,

although

no

civil

sanctions

are

expressly

imposed.

'260

Ind.

249,

297

N.E.2d

425

(1973).

"Id.

at

251,

297

N.E.2d

at

427.

In

part,

the

court

relied

upon

IND.

CODE

§

22-3-2-14

(197

1)

which

states:

"No

contract

or

agreement,

written

or

implied,

no

rule, regulation

or

other

device shall,

in

any

manner, operate

to

relieve

any

employer

in

whole

or

in

part

of

any obligation

created by

this act."

Id.

at

252,

297

N.E.2d

at

427-28.

The

court

ruled

that

an

employer

discharge

in

this

manner

constituted

a

"device,"

id.

at

252, 297

N.E.2d

at

428,

but

reliance

on

this

express

statutory

provision

was

only tangentially

related the

court's

analysis

of

what

public

policies the

Act

embodied.

45]d

169

Mich.

App.

644,

245

N.W.2d

151

(1976).

"74

111.

2d

172,

384

N.E.2d

353

(1979).

Winter,

1987]

COMMENTS

AKRON

LAW

REVIEW

volved

employees

discharged for

pursuing

worker's

compensation

claims. Both

courts

held

that

a

wrongful

discharge

cause

of

action

was

proper

despite

the

fact

that

the

worker's

compensation

statutes

neither prohibited

nor

provided

a

remedy

for

a

retaliatory

firing.

48

The

public

policy

which

the

employer

dis-

charges

offended

was

an

efficient

employee

remedy system

envisioned

by

the

statutory

scheme

of

the

Acts

read

as a

whole.

9

Large-scale

retaliatory

firings

would

deprive

the

injured

employee

a

compensatory

remedy

and,

thus,

subvert

the

legislative

policies

embodied

in

the worker's

compensation

statutes.

0

An

employer's

interference

with

an

employee's

right

to

secure

a

minimum

wage

necessitated

a

cause

of

action

for

wrongful

discharge

in

Montalvo

v.

Zamora

5

".

Montalvo

involved

a plaintiff-employee

who

was

discharged

after

sending to

his

employer

a

written

request to

be

paid

the

California minimum

wage.

The

Court

of

Appeals reversed

the

trial

court and

held

that

plaintiff

had

stated

a

cause

of

action

under

California

Labor Code

Section

9232

and

The

Minimum

Wage Law

for

Women

and

Minors."

Under

Section

923,

the

public

"See

Sventko,

69

Mich

App.

at

649,

245

N.W.2d

at

154

(Although

"[tlhe

Legislature

has

not

made

retaliatory

discharges..,

a

subject

of

any

criminal

sanction...

Itlhis

is

certainly

no indication on

the

part

of

the

Legislature

that

[this

type

of]

conduct

is

consistent

with

public

policy.");

Kelsay,

74

III.

2d

at

182,

384

N.E.2d

at

357

(court

noting

that

legislative

intent

not

to

proscribe

retaliatory

firing

through

silence

would

be

inconsistent

with

the

overall

purpose of

the

Illinois

Workmen's

Compensation

Act.)

"See

Sventko,

69 Mich. App.

at

647-48,

245

N.W.2d

at

153-54;

Kelsay,

74

11.

2d

at

180-81,

38

N.E.2d

at

357.

'*Sventko,

69

Mich.

App.

at

648,

245

N.W.2d

at

153;

Kelsay,

74

111.

2d

at

182,

384

N.E.2d

at

357.

Not

all

states

have

implied

a

wrongful

discharge

tort

from

workmen's

compensation

legislation.

In

Christy

v.

Petrus,

365

Mo.

1187, 1189,

295

S.W.

2d

122-124

(1956),

the

Missouri

Workmen's

Compensation

Act pro-

vided

for

criminal

liability

where the

employer

interfered with

any rights

within

the Act

granted

to

employees.

The

Missouri

Supreme

Court

held

that

"a

statute

which

creates

a

criminal

offense

and

provides

a

penalty

for

its

violation,

will

not

be

construed

as

creating

a

new

civil

cause

of

action

...

unless

such

appears

by

express

terms or

by

clear implication

to

have

been

the

legislative

intent."

Id.

at

1192,

295

S.W.2d

at

126.

Christy's

reasoning

was

found

persuasive to

a

North

Carolina

Court

of

Appeals

in

Dockery

v.

Lampart

Table

Co.,

36

N.C.

App.

293,

297, 244

S.E.2d

272,

275 (1978)

The

Dockery

court

ruled

that

the

absence

of

a

statutory

wrongful

discharge

remedy

evinced

a

legislative

intent

not

to

address

this problem.

Id.

However,

in

1979,

N.C.

GEN

STAT.

§

97-6.1

(1979)

was

added

to

the

North

Carolina Workmen's

Compensation

Act.

Sec-

tion

97-6.

1(a)

prohibits employer

discharges where

the

employee

institutes

any

proceedings

under the

Act,

and

97-6.1(b)

imposes

civil

liability

for damages upon

a

violation

of

97-6.1(a).

See

also

Segal

v.

Arrow Industries

Corp.,

364

So.2d

89,

90

(Fla. Dist.

Ct.

App.

1978)

(court

in

one

paragraph,

per

curiam

decision

rejected

Frampton,

see

supra

notes

43-45

and

accompanying

text,

and

Svent-

ko,

see

supra

notes

46-50

and accompanying text).

517

Cal. App.

3d

69, 86

Cal.

Rptr.

401

(1970).

"The

statute

declared

that

". ..

the

public

policy

of

this

State

is

as

follows:

Negotiation

of

terms

and

conditions

of

labor

should result

from

voluntary

agreement

between

employer

and

employees.

Governmental

authority

has permitted

and

encouraged

employers

to

organize

in

the

corporate and

other

forms

of capital control.

In

dealing with

such

employers,

the

in-

dividual

unorganized

worker

is

helpless

to

exercise

actual

liberty

of contract

and

to

protect

his

freedom

of

labor,

and thereby

to obtain

acceptable

terms

and conditions

of

employment.

Therefore

it

is

necessary

that

the

individual

workman

have

full

freedom

of association,

self-organization,

and

designation

of

representatives

of

his

own

choosing,

to

negotiate

the

terms

and

conditions

of

his

employment, and

that

he

shall

be

free

from the

interference,

restraint, or

coercion

of

employers

of

labor,

or

their

agents,

in

the designation

of

such representatives

or

in

self-organization

or

in

other

con-

certed

activities

for

the purpose

of

collective

bargaining

or

other

mutual

aid

or

protection.

Id.

at

73-75,

86

Cal.

Rptr. at

403-04,

quoting

CAL.

LABOR

CODE

§

923

(West

1971).

51

Any employer

who

discharges,

threatens

to

discharge,

or

in

any

other

manner

discriminates

against

any

employee

because

the

employee has testified

or

is

about

to

testify, or

because

the

employer

believes

that

the

employee

will

testify

in

any

investigation

or

proceedings

relative

to

the

enforcement

of

this

chapter,

is

guilty

of

a

misdemeanor.

[Vol.

20:3

policy

expressly declared was

the

right

of the

employee

to

". ..

negotiate

the

terms

and

conditions

of

his

employment..

.-

4

As

the employee

was a

member

of the

class

protected

by

the

statute,

a

wrongful

discharge

suit

for

damages

was

proper,

despite the

absence

of a

specific

remedy

within

Section

923.

55

The

employer's

conduct

was

held

to

be

actionable

under

the

Minimum

Wage

provi-

sions

because the

statute

established

as

public

policy

the

protection

of

women

and

children.

56 It is

significant

that

a

wrongful

discharge

action

was

similarly

implied

under

the

Minimum

Wage

laws

and

the

imposition

of criminal

liability

on

the employer

did

not

preclude this

civil

remedy."

The

second category

of

positive

law

that

has

sanctioned wrongful

discharge

relief

is

statutory

or

constitutional

provisions

from

which

both

employee

rights

and

a

wrongful

discharge

remedy are

implied.

They

have

no

per

se

application

to

the

employment relationship,

yet

the

employer's

actions

contravene

the

public

policy

considerations

that

are

ingrained

in

these

sources.

5

"

Allowing

an

employee

to

sue

for

damages

under

a

wrongful

discharge

theory

facilitates

the

policy

concerns

found

in

these sources.

A

subset

of

this

category concerns

employment-related

acts

which

place

the

employee

under

threat

of criminal

penalty.

For

example,

in

Petermann

v.

International

Brotherhood

of

Teamsters,

Local

3965",

the

plaintiff,

a

union

business

agent,

refused

his

supervisor's

request to

make

false

statements

at

a

committee

hearing.

A

cause

of action

for

the

employee's

subsequent

discharge

was

mandated

by

the state's

declared

policy

against

perjury

reflected

in

its

penal

code.6

Denying

a

civil

remedy

would

seriously

impair

this

public

policy

and

hamper the

administration

of

justice

in

general.

6'

The

reasoning

in

Peter-

Id.

at

76, 86

Cal.

Rptr.

at

405.

'Id.

at

73,

86

Cal.

Rptr.

at

403.

"Id.

at

74, 86

Cal.

Rptr.

at

403.

1Id.

at

76,

86

Cal.

Rptr.

at

405.

"Id

See

also

Glenn

v.

Clearman's

Golden

Cock

Inn,

192

Cal.

App.

2d

793,

13

Cal.

Rptr.

769

(1961)

(court

held

that

employer's

discharge

of

employee exercising

rights

under California

Labor

Code

to

apply

for

union

membership

was

actionable under

wrongful

discharge

theory notwithstanding

the

imposition of

criminal

liability

on

the

employer

and

the

absence

of

a

statutory

provision

allowing

a

civil

action

for damages).

The

wrongful

discharge

tort

has

also

been recognized

outside of

the

labor

relations

context.

See

Perks

v.

Firestone

Tire

&

Rubber

Co.,

611

F.2d

1363,

1366

(3rd

Cir.

1979),

where the

court

held

that

a

statute

pro-

scribing

the

use

of

polygraph

examinations

in

the employment

setting

embodied

a

recognized

facet

of

public

policy

sufficient to

allow

a

wrongful

discharge

claim.

The

court

cited

State

v.

Community Distributors,

Inc.,

64

N.J.

479,

317

A.2d

697

(1974)

wherein

the

New

Jersey

Supreme

Court

had

concluded

that

problems

in

administering

and

objectively

interpreting

polygraph

tests,

as

well

as

privacy

and

self-incrimination

con-

cerns,

militated

against

their overall effectiveness.

Perks,

611

F.2d

at

1365.

See

generally

Herman,

Privacy,

The Prospective

Employee

and

Employment

Testing:

The

Need

to

Restrict

Polygraph

and

Personality

Testing,

47

WASH.

L.

REV.

73

(1972).

Although the

pertinent

statute

alluded

to

in

Perks

provided

solely

for

criminal

liability,

Perks,

611

F.2d

at

1365,

a

civil

wrongful

discharge

action

was

implied

in

favor

of

the

employee because

of the

policy

concerns noted above.

"See The

Private

Sector

At

Will

Employee,

supra

note

2,

at

791.

11174

Cal. App.2d

184,

344

P.2d

25

(1959).

'Id.

at

188-89,

344

P.2d at

27.

11Id.

See

also

O'Sullivan

v.

Mallon,

160

N.J.

Super

416, 418,

390

A.2d

149, 150 (1978)

(Rationale

of

Peter-

mann

extended

and

applied

to

X-ray

technician

discharged for

failure

to

perform

catheterizations

that

would

place

the

employee

in

violation

of state

Medical

Practice

Act).

COMMENTS

Winter,

19871

AKRON

LAW

REVIEW

mann

laid

the

doctrinal

foundation

for

protecting

employees

who

were

discharged

for

refusal

to

alter

pollution

control

reports,

62

participate

in

the

il-

legal

fixing of

retail

gasoline

prices,

63

commit other

illegal

acts

in

furtherance

of

antitrust

violations,"

or acquiesce

to

the

mislabeling

of

food

products

65 -all

under

fear

of

criminal

liability.

However,

it

is

not

necessary

that

the

refusal

to

heed

the

employer's

solicitations directly implicate

the employee

in

criminal

activity

for

a

cause

of

action

in

wrongful

discharge

to

lie.

In

Harless

v.

First

National

Bank

in

Fair-

mont,

66an

employee alleged

he

was

discharged

for

bringing

violations

of

West

Virginia

and

federal

consumer

credit

and

protection

laws

to

his

superior's

at-

tention.

67

The

West

Virginia

Supreme

Court

of

Appeals allowed

the

employee's

wrongful

discharge

claim.

The

Court

focused

on

the

Legislature's

"comprehensive

attempt

to

extend

protection

to

the

consumers

and

persons

who

obtain

credit..

."

as

evidenced

in

the

West

Virginia

Consumer Credit

and

Protection

Act.

68

As

the

Act

affected

a

substantial number

of

people

within

the

state,

the

unequivocal

public

policy

of

consumer protection

would

be

frustrated

if

the employer

was allowed

to discharge

an

employee

seeking

com-

pliance

with

its

terms.

69

Nees

v.

Hocks

7°

illustrated

that

public

policy

can

be

inferentially

deduced

from

state

constitutional

and

statutory

provisions

and

applied

to

the

employ-

ment

setting accordingly.

Nees

involved allegations

that

an

employee

was

"See

Trombetta

v.

Detroit,

Toledo

and

Ironton

R.R. Co.,

81

Mich.

App.

489,

265

N.W.2d

385 (1978).

Reasoning

"that

the

public

policy

of this

state

does

not

condone attempts

to

violate

its

duly

enacted

laws,"

Id.

at

495,

265

N.W.2d

at

388,

the

court

held

actionable

the

employer's

discharge

of

the

plaintiff

in

retalia-

tion for

refusing

to

alter

reports

and

adjust

sampling results required to

be

filed

with

the

state

of

Michigan.

Id.

at

496, 265

N.W.

2d

at

388.

Pursuant

to

statute,

the

employee

faced

the

possibility

of

a

misdemeanor

conviction

and

a

$25,000

fine:

"A

person

...

who

renders

inaccurate

a

monitoring

device

or

record

required

to

be

maintained

by

the

commission

is

guilty

of

a

misdemeanor

and

shall

be

fined

not

less

than

$2,500.00

nor

more

than

$25,000.00 for

each

violation."

Mich.

Comp.

Laws

Ann.

§

323.10(2)

(West

1971).

"See

Tameny

v.

Atlantic

Richfield

Co.,

27

Cal.

3d

167,

610

P.2d

1330,

164

Cal. Rptr

839

(1980).

The

employee

claimed

his

discharge

stemmed

from

his

refusal

to

threaten

independent

service

station

owners

to

reduce

gasoline prices

in

an

amount

set

by

his

employer.

In

responding

to

plaintiffs

complaint,

the

court

analogized his

situation to

Petermann,

174

Cal.

App.

184,

344

P.2d

25 (1949)

and

found

that

"an

employer's

authority

over

its

employee

does

not

include

the right to

demand

that

the

employee

commit

a

criminal

act

to

further

its

interests,

and an

employer

may

not

coerce

compliance with

such

unlawful directions

by

discharg-

ing

an

employee

who

refuses

to

follow

such

an

order."

Tameny

27

Cal.

3d

at

178,

610

P.2d

at

1336-1337,

164

Cal.

Rptr.

at

846.

"See

McNulty

v.

Borden

Inc., 474

F.

Supp.

1111

(E.D.

Pa.

1979).

"See

Sheets

v.

Teddy's

Frosted

Foods,

Inc.,

179

Conn.

471,

427

A.2d

385

(1980).

It

is

not

altogether

clear

from

the

majority

opinion

the

specific

underlying

basis

for

the

modification

of

the

at

will

rule,

although

the

court

placed

much

emphasis on

the fact

that

had

the

plaintiff

participated

in

the

mislabeling

scheme, he

faced

potential criminal

liability

under the

Connecticut

Uniform

Food, Drug

and

Cosmetic

Act.

Id.

at

478, 427

A.2d

at

388.

"246 S.E.

2d

270

(W.

Va.

1978).

7Id.

at

272.

"Id.

at

275-276.

"Id.

at

276.

Although the

court

noted

that

violations

of

the

Act

could

result

in

criminal

penalties,

the

plain-

tiff

employee was

not

subject

to

criminal

liability

under the

Act.

70272

Or.

210,

536 P.2d

512

(1975).

[Vol.

20:3

discharged

for

being

called

and

serving

on

a

jury.

The

starting

point

for

the

Supreme

Court

of

Oregon's

analysis

was

the

Oregon

Constitution,

which

pro-

vided

a

right

to

a

jury

trial

in

criminal

and

civil

cases

in

the

presence of

compe-

tent

jurors."

These

provisions,

along with

state statutes

excusing

potential

jurors

only

in

certain

limited

instances,

indicated

"that

the

jury

system

and

jury

duty

are regarded

as

high

on the

scale

of American

Institutions

and

citizen

obligations.""

In

order

to

promote

the

"substantial

societal

interests

in

having

citizens

serve

on

juries"

73

and to ensure

the

viability

of

the

jury

system,

a

right

in

the

plaintiff

to

sue

for

wrongful

discharge

was

necessary

to

promote

these

ends.

Does

the

Public

Policy

Exception

to

the

At

Will

Employment Agreement

Ex-

ist

in

Ohio

After

Phung?

In

Phung

v.

Waste

Management,

Inc.,

7 '

the

plaintiff

was

a

chemist

at a

toxic

waste

disposal

site

who

alleged

that

his

employer

had

violated

"various

statutory,

regulatory,

and

societal

obligations"

5

and

that

his

discharge

stemmed

from

bringing

these

violations

to

his

superiors'

attention.

In

a

two

page

opinion,

the

majority

announced

three

justifications for

not

creating

a

public

policy

exception

as

applied

to

the

particular

facts

of

the

case.

As

an

initial

matter,

the

allegations

pleaded

by

Phung

"failed to

state

a

viola-

tion

of

a

sufficiently

clear public

policy

to

warrant

creation

of

a

cause

of

action

"..."

and

were

merely

conclusory.

The

Ohio

Supreme

Court

went

on

to

state

that

public

policy

did

not

mandate

a per

se

exception

to

the

employment

at

will

doctrine

"when an

employee

is

discharged for

reporting

to

his

employer

that

it

is

conducting

its

business

in

violation

of

the

law.""

Finally,

and

perhaps

most

significantly,

the

Court

reasoned

that

matters

relating

to

the

protection

and

welfare

of

State

employees

were

primarily

a

legislative

rather

than

a

judicial

concern.

Specifically,

the

Court

noted

legislative

attempts

to

modify or

limit

111d.

at

218-219,

536

P.2d

at

516.

"Id.

at

219,

536

P.2d

at

516.

"Id.

at

220,

536

P.2d

at

516;

See

aLso

Reuther

v.

Fowler

&

Williams

Inc.,

255

Pa.

Super.

28, 386

A.2d

119

(1978),

where the

court

decided

the

same

issue

in

the

employee's favor.

The

Nees

court's

analysis

was

per-

suasive

to

the

Reuther

majority, which

concluded

that

a

"recognized

facet

of

public

policy"

was

extant

from

similar

Pennsylvania

state

constitutional

provisions.

Id.

at

32-33,

386

A.2d

at

120-21.

One

California

ap-

pellate

court

has

held

differently.

In

Mallard

v.

Boring,

182

Cal.

App.

2d 390,

6

Cal.

Rptr.

171

(1960),

the

court

held

that

jury

duty

was

not

tantamount

to

a

political

activity protected

by

a

California

statute

which

read:

"No

employer

shall

make,

adopt, or

enforce

any

rule,

regulation, or

policy

...

controlling

or

directing,

or

tending to control

or

direct

the

political

activities or affiliations

of

employees."

Id.

at

394-95,

6

Cal.

Rptr.

at

174.

Inasmuch

as

jury

duty

did

not

rise

to

the

level

of

a

political

activity,

the

employee's discharge

for

serving

on

a

jury

was

proper.

Thus,

Mallard

was decided

solely

on

statutory

grounds,

and

no

reference

was

made

to

the

California

state

constitution

as

plaintiff apparently

did

not

raise

this

as

a

legal issue.

'423

Ohio

St.

3d

100, 491

N.E.

2d

1114

(1986).

"Id.

at

101,491

NE

2dat

1115.

"Id.

at

102,

491

N.E.2d

at

1116-17.

"Id.

at

103, 491

N.E.2d

at

1117.

781d

Winter,

19871

COMMENTS

AKRON

LAW

REVIEW

the

employment

at

will

doctrine

in

the

areas

of worker's compensation

and

employment

discrimination."

The

majority

opinion

was

in

accord with

some

lower

Ohio

court

decisions

which

had

rejected

the

public

policy

exception.

0

There

is

no

doubt

that

employers

who

are

now

sued

for

wrongful

discharge

in

Ohio

will

elevate

Phung

to

the

legal

proposition

that

no

public

policy

exception

exists

in

Ohio. However, the

majority

left

many

questions

unanswered

surrounding

the

public

policy

doctrine

that

Phung

cannot

be read

so

broadly.

To

the

contrary,

a

careful

reading of

Phung

indicates

that

the

public

policy

exception

is

still

an

open

issue

in

Ohio.

The

majority

left

unanswered whether the

Supreme

Court

would have

en-

tertained

plaintiff

Phung's

complaint

if

he

had

alleged

with

specificity

the

pub-

lic

policy

concerns

breached

by

his

employer.

A

reasonable

inference

drawn

from

the language

of

the

opinion

8'

is

that

a

different

result

may

have

been

ob-

tained

had the

plaintiff

specified

the purported

public

policy

interests

at

stake.

Secondly,

Phung

represents

less

a

wholesale

rejection

of

the

public

policy

ex-

ception

than

a

narrow

rule

of

law

sustaining

employer

terminations

where the

employee

reports

to

his employer

that

its

business practices are

in

violation

of

the

law.

82

The

Court

did

not

address

whether

a

cause of

action

could

be sus-

tained

where

an

employee

reported

his

employer's

alleged

violations

directly

to

law

enforcement

officials

-

a

situation found

sufficient

to

warrant

a

wrongful

"Id.

The majority

opinion

triggered

a

stinging

dissent from

Justice

Brown,

who

expressed

disappointment

over

the

majority's

refusal

to

join

the

majority

of

states

who had created

a

public

policy

exception.

See

Phung,

23

Ohio

St.

3d

at

104,

491

N.E.2d

at

1117

(Brown, J.,

Dissenting)

and

cases

cited

at

n.l.

The

dissent

took

issue

with

the

majority's contention

that

Phung's

complaint

was defective,

noting

that

inferences

drawn

from

the

language of

the

complaint

clearly

implicated

violations

of

"fundamental

public

policies

of

the

state

of

Ohio."

Id.

at

106,

491

N.E.2d

at

1119-1120.

Moreover,

the majority

ignored two

statutory

provi-

sions

that

addressed broad

public

interest

concerns.

Id.

at

107,

491

N.E.2d

at

1120.

One

was

OHio

REV.

CODE

ANN.

§

3734.99(A)

(Page

1981)

which

states:

Except

as

otherwise

provided

in

division

(B)

of

this

section,

whoever

recklessly

violates

any

section

of

this

chapter,

except

section

3734.18

of

the

Revised

Code,

governing

the storage,

treatment,

transpor-

tation, or

disposal

of

hazardous

waste

is

guilty

of

a

felony

and

shall

be

fined

at

least

ten

thousand

dollars

but not

more

than

twenty-five

thousand

dollars

or imprisoned

for

at

least

two

years

but

not

more

than

four

years,

or

both.

Whoever

violates

any

section

of

this

chapter

governing

the

disposal

of

solid

wastes, or

violates

section 3734.18

of

the

Revised

Code,

shall

be

fined

not

more

than

two hun-

dred

fifty dollars.

Each

day

of violation

constitutes

a

separate

offense.

OHIo

REV.

CODE

ANN.

§

2921.22(A)

(Page

1975)

provides

that

"no

person, knowing

that

a

felony

has

been

or

is

being

committed,

shall

knowingly

fail

to

report such

information

to

law

enforcement

authorities."

These two

statutory

expressions

of

public

policy

would

be

sufficient to

state

a

cause

of

action

for

wrongful

discharge.

Phung,

23

Ohio

St.

3d

at

107,

491

N.E.2d

at

1120.

s"See

West

v.

Roadway

Express,

Inc.,

8

Ohio

B.

155,

161-63, (1982)

(after

a thorough

review

of

the

jurisdic-

tions upholding

or

rejecting

the

public policy

exception,

the

court

noted

that

Ohio had

taken no

position

on

its

viability,

and

other

remedies

obtainable

by

statute

did

not

warrant

establishing

the doctrine

subjudice);

Rachubka

v.

St.

Thomas

Hospital

Medical

Center,

No.

11596

(9th

Dis.

Ct.

App.

October

10,

1984)

(available

in

Ohio App.

Dec.

on

Fiche

84-28-9d);

Aylward

v.

First

Bankcorp.,

(9th Dist.

Ct.

App.

September

12,

1984)

(available

in

Ohio App.

Dec.

on

Fiche

84-24-9d);

Teubert

v.

Elkem Metals

Co.,

(4th

Dist.

Ct.

App.

December

19,

1984)

(available

in

Ohio

App.

Dec.

on

Fiche

84-19-4d);

Senft

v.

General

Electric

Co.,

(6th

dist.

Ct.

App.

July

9, 1982)

(available

in

Ohio

App.

Dec.

on

Fiche

82-15-6d).

i"See

Phung,

23

Ohio

St.

3d

100,

491

NE

2d 1114.

'The

official

court

syllabus

states:

"Public

policy

does

not require

that

there

be

an

exception

to the

employment-at-will doctrine when an

employee

is

discharged

for

reporting

to

his

employer

that

it is

conduct-

ing

its

business

in

violation

of

law."

Phung,

23

Ohio

St.

at

100, 491

N.E.

2d

at

1114

(emphasis

added).

[Vol.

20:3

Winter,

19871

discharge cause

of

action

by

at

least

one

state

supreme

court.

3

Finally,

the

Phung

court's

view

that

the judiciary

should play

a

limited

role

in

employment

matters

84

is

an

unnecessarily

narrow

one

for

several

reasons.

For

example,

Ohio

courts"

have

granted

injured

employees

the

right

to

pursue

an

action against

their

employers

for

intentional torts

notwithstand-

ing

the

fact

that

the Ohio Worker

Compensation statutes"

did

not

expressly

grant

such

a

right.

This

judicial

intervention

indicates

that

the legislature

and

the

judiciary

have

at

least

played

a

dual

role in

shaping

the

contours

of

the

employment

relationship.

Several

other

factors

militate

in

favor

of

sanctioning

a

similar

right

on

the

part

of the

employee

to

bring

a

cause

of

action

for

wrongful

discharge.

Insofar

as

the

employment

at

will

rule

is

a

judicially

created

doctrine,

87

"it

is

ap-

propriate

that

...

newly

recognized

exceptions to

its

application

should

come

from

judicial

decisions."

8

In

other

areas

of

judicially created

law,

courts

have

not

hesitated

to

bring

about

change when circumstances have

merited the

need

to

do

so.

9

Furthermore,

the

realities

of the

legislative

process

impact

upon the

inter-

relationship

between

legislatures

and courts

in

the

creation

of

new

rights

and

duties.

A

major

criticism

of

deferring

employment matters

to

the

legislature

is

that:

statutes

are

not

enacted

because

they

incorporate

good ideas

or

principles;

rather,

they are

enacted

because

organized

interest

groups

lobby

for their

enactment.

Employees who

have

not

been

organized

by

a

labor

union

are

"See

supra

notes

26-29

and

accompanying

text.

"See

Phung,

23

Ohio

St.

3d

at

103, 491

N.E.

2d

at

1117.

"See

Jones

v.

V.I.P.

Development

Co.,

15

Ohio

St.

3d

90,

472

N.E.2d

1046

(1984);

Blankenship

v.

Cincin-

nati

Milacron

Chemicals,

Inc., 69

Ohio

St.

2d

608, 433

N.E.2d

572

(1982),

cert

denied

459

U.S.

857

(1982);

Delamotte

v.

Midland

Ross, 64

Ohio

App.

2d

159,

411

N.E.2d

814

(1978).

The Blankenship

court

noted

that

". ..

neither

the

relevant

[Ohio)

constitutional

language

nor

the

perti-

nent

statutory

language

expressly

extend

the

grant

of

immunity

to

actions

alleging

intentional tortious

con-

duct

by

employers

against

their

employees."

Blankenship,

69

Ohio

St.2d

at

612,

433

N.E.2d

at

575-576 (em-

phasis

added).

"See

OHIO

REV.

CODE

ANN.

§

4123.74

et

seq

(Page

1980).

"See

Mauk,

supra

note

3,

at

255;

see

also

Phung,

23

Ohio

St.

3d

at

107, 491

N.E.

2d

at

1120

(1986)

(Brown,

J.,

dissenting);

notes

5-12

and

accompanying

text).

"Mauk,

supra

note

3,

at

255.

"The

common

law

doctrine

of sovereign

immunity

is

a

prime example.

See

Kojis

v.

Doctor's Hospital,

12

Wis.

2d

367,

107

N.W.2d

131

(1961)

modified,

12

Wis.

2d

367,

107

N.W.2d

(1961).

In

abrogating

the

doc-

trine,

the

court

noted

that

"the rule

of

stare

decisis,

however

desirable from

the

standpoint

of

certainty

and

stability,

does

not

require

us

to

perpetuate

a

doctrine

that

should

no

longer

be

applicable

in

view

of

the

changes

in

present day

charitable

hospitals."

Id.

at

372,

107

N.W.2d

at

133-34;

McAndrew

v.

Mularchuk,

33

N.J.

172,

193,

162

A.2d

820,

832

(1960)

(insofar

as

governmental

immunity

limitations

of

respondeat

superior

were

placed

there

by

the

judiciary,

"it

cannot

be

urged

successfully

that

an

outmoded, inequitable,

and

artificial

curtailment of

a

general

rule

of

action

created

by

the judicial

branch

of

government

cannot

or

should

not

be

removed

by

its

creator"); Hargrove

v.

Town

of

Cocoa

Beach,

96

So.2d

130, 132

(1957)

(seeing

"no

necessity for

insisting

on legislative

action

in

a

matter

which

the courts

themselves

originated");

See

also

Pierce

v.

Yakima

Valley

Memorial Hospital

Ass'n.,

43

Wash.

2d

162,

260

P.2d

765

(Sup.

Ct.

1953);

Collopy

v.

Newark

Eye

and

Ear Infirmary,

27

N.J.

29,

141

A.2d

276

(1958).

COMMENTS

AKRON LAW

REVIEW

exactly

that: unorganized

and

therefore

lacking

in

the

unity

of

purpose

and

effort

that

produces

a

successful

lobby.

On the

other

hand,

employers

have

associations

that

traditionally

have

lobbied

against

legislation

con-

flicting

with employer

interests...90

Furthermore,

general

legislative

indifference

in

areas

such

as tort

reform,

9'

a

high

turnover

rate

of

elected

representatives,

92

and

a

less

than

con-

ducive

legislative

work

environment

93

taints

the

notion

that

wholesale

changes

in

employment

affairs should

await

legislative

directive.

Given

these

legislative

impediments,

it

is

logical

to

conclude

that

the

judiciary

should

be

the catalyst

in

reforming

the

employment

at

will

rule.

94 En-

dorsing

judicial reform

in

this

area

is

a

mere

recognition

that

our

American

system

of

jurisprudence

has always delegated

to

courts

a

proportionate

role

of

improving

the

law

and

preserving

its

continuity.

95 In

addition, there

exists

an

important

legislative

check

on an overzealous

judiciary:

the

legislature

is

free

to

overturn

or

modify

"the

determination

of

a

respected

body

of

impartial

men

[or

women]."

96

A

PROPOSAL

FOR

OHIO

As

employment

matters,

in

general,

and

the

at-will

rule

in

particular,

are

not

solely

areas

of

legislative

concern,

the

relevant

inquiry

involves

identifying

those

circumstances

in

which

a

wrongful discharge cause

of

action

may

be

legitimately

applied.

Establishing

a

workable set

of

criteria

borrowed

from

other

jurisdictions

will

result

in

a

set

of guidelines

that

should minimize

vex-

atious

lawsuits

and protect

the

employee

from

an

unjust

discharge.

To

temper fears

of

judicial

policy

making

and

the

unpredictability

that

would

result,

97

courts

should

imply

a

wrongful

discharge

action

only where

9'See

Peck,

supra

note

3,

at

3.

91

See

Peck,

The

Role

of

Courts

and

Legislatures

in

the

Reform

of

Tort

Law,

48

MINN.

L.

REV.

265, 268

(1963).

9id.

at

273.

"Id.

at

272.

Although

Peck

urges

active judicial

reform

in

problematic areas such

as

contributory-

comparative

negligence,

Id.

at

304-305;

contribution,

Id.

at

307-308;

emotional

distress, Id.;

and

liability

of

land owners

and

occupiers,

Id.

at

309-311.

The aforementioned factors

which

impact upon

legislative

deci-

sion

making

would

have

universal

application to

any

legislation

in

general, including legislation

(or

the

lack

thereo)

in

the

employment-at-will

arena.

'Id.

at

285.

An

example of

a

legislative response

to

a

judicial

determination

in

the

employment area

is

pro-

vided

by

Fawcett

v.

Murphy

Co.,

46

Ohio

St.

2d

245, 348

N.E.2d

144

(1976).

In Fawcett,

the

Ohio

Supreme

Court

held

that

a

violation

of

Ohio's

age

discrimination

statute

(OHIO

REV.

CODE

ANN.

§

4101.17(A)

(Page

1980))

did

not

give

rise

to

a civil

cause

of

action

for

damages

since

such

a

right

was

not intended

"by

clear

implication."

Id. at

249, 348

N.E.2d

at

147.

Three

years

subsequent

to Fawcett,

the Ohio

Legislature

responded

by

adding

§

4101.17(B),

which

expressly

granted

the

right

to

bring

a

civil

action

for

a

violation

of

§

4101.17(A)

See

OHIO

REV.

CODE

ANN.

§

4101.17(B)

(Page

1979).

1

5

R.

KEETON,

VENTURING

TO

DO

JUSTICE,

11(1969).

"Peck, supra

note

90,

at

286.

"See

supra

notes

16-26

and

accompanying

text.

[Vol.

20:3

there

is

a

clearly

articulated

statutory

or

constitutional

expression

of public

policy.

For

instance,

remedial legislation

enacted

for

the

benefit

of

a

class,

like

consumers

9

"

or those covered

by

worker's

compensation,"

implicates

policy

concerns

deserving

of

protection

due

to

the

"pervasive

legislative

scheme"'"

underlying

such acts.

Relevant

criminal

code

provisions

could

also provide

suf-

ficient

indicia of

legitimate

state

public

policy.'

As

a

second

limitation

on

the

wrongful

discharge

tort,

the employer's

ac-

tions

must

significantly impair

or

frustrate the

policies

envisioned

in

these

sources.

In

essence,

the

employer's

act

in

discharging

the

employee

should

not

only

harm

the

employee,

but

society in

general

since

"the crux of the

wrongful

discharge

tort

lies

in

the harm,

threatened

or

actual,

to

society

should

employers

be

free

to

discharge

for

a

particular

reason."'

' 2

Frampton'

03

and

Sventko

°

'

are

illustrative

of

the

manifest

harm

to

all

workers

that

would

flow

from

a

discharge

pursuant

to

filing

a

compensation

claim.

The

harm

to

our

in-

stitutional

jury

system'

05

and

the

undermining

of

the

administration

of

justice'

6

also

exemplify

the

type

of

broad

threat

to

society

that

should

trigger

a

cause

of

action.

However,

where the

discharge

only

minimally affects

the

public

or

societal

interest,

07

or merely

involves

private or

proprietary

interests,

0'

no

cause

of

action should

be

implied.

Procedurally, the

discharged

employee

should

be

required to

plead

with

specificity

the

public

policy

concerns

allegedly

breached

by

the

employer.

The

specificity

burden

would

serve

to

notify

the employer

of

the

underlying

basis

of

the

claim

and

to

satisfy

the

apparent

unwillingness

of

some

courts

to

let

the

employee

rely

on

conclusory

allegations

in

wrongful

discharge

pleadings.'

°9

"See

supra

notes

66-68

and

accompanying

text.

"See

supra

notes

43-50

and

accompanying

text.

'"See

RESTATEMENT

(SECOND)

OF

TORTS

§

874(A)

comment

i.

(Proposed

official

draft

1977).

"'See

supra

notes

59-61

and

accompanying

text.

"Guidelines

for

A

Public

Policy

Exception,

supra

note 2,

at

636.

""See

supra

notes

43-45

and

accompanying

text.

"'See

supra

notes

46-50

and

accompanying

text.

'"See

supra

notes

69-72

and

accompanying

text.

'"See

supra

notes

59-61

and

accompanying text.

"'7

See

Guidelines

For

a Public Policy Exception, supra

note

2,

at

639-640.

""See

Campbell

v.

Ford

Indus.,

Inc.,

266

Or.

479

513

P.2d

1153

(1973)

(Minority

shareholder-employee

allegedly

discharged

for

refusal

to

acquiesce

to

a

fraudulent

forced

selling

of

his

stock could

not

recover

under

wrongful discharge

theory

for injuries

to

his

interest

as

an employee,

but

only

to

his

interest

as

a

shareholder);

Percival

v.

General

Motors

Corp.,

400

F.

Supp.

1322

(E.D.

Mo.

1975),

aff'd

539

F.2d

1126

(8th

Cir.

1976)

(corporate

employee

alleging

wrongful

discharge

for

urging

management

to

correct

potential-

ly

misleading

information

regarding

corporations'

work

on

alternative

power

plants

did not implicate

any

broad

public

policy

concerns);

see

also

Becket

v. Welton

Becket

&

Associates,

39

Cal.

App.

3d

815,

114

Cal.

Rptr.

531

(1974);

Scroghan

v.

Kraftco

Corp.,

551

S.W.2d

811

(Ky

1977);

Larsen v.

Motor

Supply Co.,

117

Ariz.

507,

573

P.2d

907

(1977);

Jackson

v.

Minidoka

Irrigation

Dist.,

98

Idaho

330,

563 P.2d

54

(1977);

but

see

Protecting

Employees

At

Will,

supra

note

3,

at

1948

(stating

that

public-private

distinctions

as

a

basis

for

wrongful

discharge

relief

often

overlap,

and

therefore

should

not factor

into

a

determination

of

whether

a

cause

of

action

lies).

"See

generally

Phung

v.

Waste

Management,

Inc.,

23

Ohio

St.

3d

100,

491

N.E.2d

1114

(1986);

Adler

v.

Winter,

19871

COMMENTS

AKRON

LAW

REVIEW

Other

procedural

devices

could

be

implemented

to

circumscribe

wrongful

discharge litigation.

Making

the

employer's

actions

presumptively

correct

or

compelling

the

employee

to

prove

his

case

by

a

"clear

and

convincing"

stan-

dard

are

also

worth

consideration.

1

0

In

addition, there are

two

other

limitations

that

would limit

application

of

the wrongful

discharge

tort.

An

employee

who

has

a

statutory

remedy

for

the

discharge

should

be

barred

from

pursuing an

independent

tort

action."'

Underlying

this

rule

is

the

notion

that

the

employee

should

not

be

allowed

to

expand

his

remedies

when

statutes

have

specified

the method or

extent

of

recovery."'

Finally,

legislative

repeal

or modification

exists

as

an

inherent

limitation

on

the wrongful

discharge

tort."'

Admittedly

the

public

policy

doctrine

underlying

the

wrongful discharge

tort

is

not

a

model

of clarity."

4

However,

courts

should

not

refrain

from

im-

plementing

this

remedy

where

a

narrowly

tailored

set of guidelines,

both

substantive and

procedural,

exist.

Certainly,

the

concept

of

public

policy

is

no

more vague

than

other

legal

standards

such

as

"good

faith,"

"proximate

cause,"

or

"probable cause."

FURTHER

LIMITATIONS

ON

THE

AT-WILL

RULE: CONTRACT

PRINCIPLES

The

traditional

exceptions

to the employment

at

will

rule

based

on

prin-

ciples

of

contract

law

were

narrow and

few.

In

order to

create

a

contract

for

continued

employment,

the

employee

had to

show

that

some

type

of

separate

or

additional consideration

other than

services

to

be

rendered

was

given

to the

employer."

5

If

additional consideration

was

given

by

the

employee,

the

American Standard Corp.,

291

Md.

31,

432

A.2d

464

(1981);

Geary

v.

United

States

Steel

Corp.,

456

Pa.

171,

319

A.2d

174

(1974);

Pierce

v.

Ortho

Pharmaceutical

Corp.,

84

N.J.

58,

417

A.2d

505

(1980).

"'See

Blades,

supra

note

2,

at

1429.

"'Limiting

the

wrongful

discharge rule

in

this

manner

would

be

consistent with

present

Ohio

thought

on

this

issue.

See

Hoopes

v.

Equifax,

Inc.,

611

F.2d

134

(6th

Cir.

1979);

Dadas

v.

Prescott,

Bell,

and Turben,

529

F.

Supp.

203

(N.D.

Ohio

1981);

Welch

v.

Brown's

Nursing Home,

20

Ohio

App.

3d

15,

484

N.E.2d

178

(1984);

But

see

Mauk,

supra

note

3,

at

243

and

cases

cited

at

n.

213

(contending

that

the more

liberal

view

is

to

recognize

wrongful discharge

tort

as

an

independent

and additional

remedy).

"'See

cases cited

at

n.

111

and

accompanying

text.

"'See supra

note

96

and

accompanying text.

"'See supra

notes

16-25

and accompanying

text.

"'See

Pearson

v.

Youngstown

Sheet

and

Tube

Co.,

332

F.2d

439

(7th

Cir.

1964)

(discharged

at

will

employee

did

not

prove

additional consideration

through

allegations

that

his

28

2 years

of

service

destroyed

his

suitability

for

employment

elsewhere);

Peterson

v.

Scott

Construction

Co.,

5

Ohio

App.

3d

203, 451

N.E.2d

1236

(1982);

but

see

H.S.

Kerbaugh,

Inc.

v.

Gray,

212

F.

716

(2nd

Cir.

1914)

(at

will

employee

con-

tinuing

in

employment

in

exchange

for

employer's promise

to

pay

bonus

constituted

sufficient consideration

to enforce

promise).

Of

course,

an

employee

could

always

defeat

the

at

will

rule

by

showing

that

the parties

never

intended

such

an

agreement.

In

Bascom

v.

Shillito,

37

Ohio

St.

431,

(1882),

the

defendant

employer

modified

the

plaintiff-employee's

salary

from

a

monthly

to

a

yearly

basis

upon

the employee's

request for

more

permanent

employment. The

employee

contended

that

his

discharge

subsequent

to

the

modification

was

ineffective since

the

modification

was

tantamount

to

a

hiring

for

a

term.

The

employer

submitted

that

no

hiring

for

a

term

resulted,

and

therefore

the

employee

was

terminable

at

will.

The

Ohio Supreme

Court

ruled

in

favor

of

the

employee,

holding

that

"proof

of

the

periods

at

which

payments

were

to

be

made,

the

character

of

the

employment,

custom,

the

course

of

dealing

between

the

parties, or

other

fact[s]..."

should

[Vol.

20:3

employer presumably

intended

not

to

discharge

except for cause."

6

Absent

some

proof

of

additional consideration,

courts

consistently

refused

to

construe

indefinite

hirings

as

anything

other

than at

will

agreements

on

the

grounds

that

such

contracts

lacked

mutuality

of

obligation."

7

Application

of

the traditional

mutuality

doctrine

to

employment

and

policy

handbooks

is

illustrated

by

Johnson

v.

National

Beef

Packing

Co.

"

The

employee discharged

in

Johnson

contended

that

a

"Company

Policy

Manual"

containing

a

"just

cause"

provision, along

with

statements

dealing

with

employee

benefits,

holidays,

vacation and

insurance, bound

the

employer

ex-

pressly

or

impliedly

to

a

fixed

term

of

employment.

The

Supreme

Court

of

Kansas

affirmed

summary

judgment

in

favor of the

employer on the

basis

that

the

manual

"was

only

a

unilateral

expression

of

company

policy

and

pro-

cedures.""

9

The

terms

of

this

"unilateral

expression"

were

not

bargained

for,

nor

was

there

a

meeting of

the

minds

on

the

statements contained therein.

20

be

considered.

Id.

at

433-434.

However, no hiring

for

a

term

will be

implied

merely from

a

contract

which

provides for

an annual

rate

of

salary,

and

is

silent

as to

the duration of

employment.

See

Henkel

v.

Educa-

tional Research

Council of America,

45

Ohio

St.

2d

249, 344

N.E.2d

118

(1976).

See

also,

Byrd

v.

Mac

Tools,

Inc.,

NO

81CA6

(12th

Dist.

Ct.

App.

June

2,

1982)

(available

in

Ohio

App.

Dec.

on

Fiche

87-7-12d).

"'See

Murg

&

Scharman,

supra

note

3

at

358.

"'See

Blades,

supra

note

2,

at

1419

and

cases

cited

at

n.

72.

For

a

discussion

of

the

mutuality

doctrine,

see

supra

note

12

and

accompanying

text.

"'220

Kan.

52,

551

P.2d

779

(1976).

"I

9

1d.

at

55,

551

P.2d

at

782.

1Id.

One

Ohio

court,

in

Jones

v.

East

Center

For

Community

Mental

Health,

Inc.,

19

Ohio App.3d

19,

482

N.E.2d

969

(1984)

has applied the

Johnson

approach

to personnel

manuals.

Analyzing

the

plaintiff-

employees personnel

handbook within

the

mutuality

of

obligation framework,

the

Court

of

Appeals

held

that

the

manual

failed

to

create

binding

obligations

since

"[the employee]

gave

nothing

in

return

for

[the

promises

contained

in

the

manual],

and

thus..,

was

not bound

by

the

agreement."

Id.

at

22, 482

N.E.2d

at

973. Since

the

employee

was

not

bound

by

the

manual's

terms,

the

manual

could

not

be

considered

a

binding

contract

to

provide

for lifetime

employment.

Id.

Curiously,

the

same

court

of

appeals

less

than

one

month

after

Jones

enforced an employer's

written

and

oral

assurances

of

severance

pay

in

Helle

v.

Landmark, Inc.

15

Ohio App.

3d

1,472 N.E,2d

765

(1984).

In

Helle,

the

employer

distributed

a policy

manual

establishing

a

severance

plan

for

employees

who

were

ter-

minated

due

to

economic necessity. The

plaintiff

employees

were also given

oral

assurances

by

company

agents

of

their

entitlements

to

severance pay.

Subsequently,

the company

amended

the severance

provisions

such

that

the

employees

received

substantially

less

severance

pay.

In

reversing

the

trial

court's

dismissal

and

upholding

the

severance

plan as

it

existed

before

the

amend-

ment,

the

court

totally

abandoned

the

mutuality

of obligation

analysis

applied

in

Jones.

The

Helle

court

started

from the

analytical

premise

that

parties

to

an

at

will

agreement

may

otherwise

modify

it,

Id.

at

7,

472

N.E.2d

at

772,

and

such modifications are

binding

where

the

"paradigm

elements"

of

offer,

acceptance,

and

consideration

are

met.

Id.

at

8,

472

N.E.2d

at

774.

After

concluding

that

the

oral

and

written representa-

tions

of

severance

pay

constituted

an

offer,

Id.

at

8-9,

472

N.E.

2d

at

774-775,

the

court

ruled

that

accep-

tance

was

satisfied

when

the

employee

remained

on

the

job

after

learning

of

the

severance

policy.

Id.

at

10,

472

N.E.2d

at

776.

Finally,

and

most

importantly,

the

court

abandoned

the

Jones

rationale requiring

the

employee

to

satisfy

the

element

of

consideration

by

giving

something

in

return

for

the

promises

contained

in

the

manual.

Rather,

"for

purposes

of

consideration,

the

employee's

retention

and

continued performance

of

his

work

suffice

to render

the

new

condition

of

severance

pay enforceable."

Id.

at

11,

472

N.E.

2d

at

775.

Mutuality of

obligation had

no applicability

to

unilateral

contracts

such

as

employment

contracts,

which

call

for

performance

of

a

promise.

Id.

at

12,

472

N.E.

2d

at

776.

Thus,

the

Helle

court

was

in

line

with

modern

contract thought

limiting

the

mutuality

doctrine

to

bilateral

contracts,

where

the

parties

exchange

reciprocal

promises.

Id.

(citations

omitted).

See

also

Boiling

v.

Clevepack

Corp.,

20

Ohio

App.

3d

113,

484

N.E.

2d 1367

(1984)

(Helle

followed).

There

is

no

principled

reason

for

applying

the mutuality

doctrine

to

Jones

and abandoning

it

in

favor

of

a

more

modern approach

liberalizing

the consideration

necessary

to

give

the

manual

legal

effect

as

the

court

did

in

Helle.

Although

the

employee

in

Jones

sought

to

imply

a

contract

term

for

lifetime

employment

based

Winter,

1987]

COMMENTS

AKRON

LAW

REVIEW

Therefore,

the

manual

was

a

mere

gratuity,

and

had

no

binding

legal

effect

on

the

employer.

Several

factors

have

coalesced

in

the movement

toward

a

more

liberal

standard

of

determining

what

limitations,

if

any, should

be

placed

on

the

employer

in

an

at

will

relationship.

The

first

is

a

recognition

that

"the

presumption

that

an employment

contract

is

intended to

be

terminable

at

will

is

subject,

like

any presumption,

to

contrary

evidence."

''

Examining

all

the

facts and circumstances

between

the parties

may

reveal

an

intent

to

set

the

employment

duration

for

a

fixed

period

of

time.'

Since

the

primary

focus

is

on

the

intent

of

the

parties, there

has

been a

departure

from

the

mechanical

rule

that

a

contract

for

permanent

employment

should

always

be

construed

as

a

contract

terminable

at

any

time

by

any

party.'

23

Given

this

shift

in

focus,

employment

handbooks

or

policy

statements

have

undergone judicial

scrutiny

in

search

of

the

parties'

intent.

The

employer ostensibly

distributes

these

statements

with

an

eye

towards

receiving

certain

benefits

incident to

the

employment

relationship.'

24 It

necessarily

follows

that

the

employer

may

also

have

created

binding

obligations

in

exchange

for these benefits.

Toussiant

v.

Blue

Cross

and

Blue

Shield'

25

stands for

the

proposition that

an

at-will

employee

can

be

endowed

with

the

contractual

right

not

to

be

dis-

charged except

for

cause. The modification

of

an

otherwise

at-will

agreement

can

be

implied

from

the

policy

manuals

or

statements distributed

to

the

em-

ployee, or

through

the

employer's

express

oral

agreement

to

terminate

only

for

on the manual,

as

opposed

the

employee in

Helle

seeking

performance

of

specific

promises

in

the

manual,

both

situations

involved

unilateral

employment

contracts.

Furthermore,

courts

have looked

with disfavor

on

the

employer's

argument

that

cases

involving the employee's

expectation

of

benefits

grounded

in

the

manuals

are

distinguishable

from

those

where the

employee

seeks

to

imply

a

"just

cause"

termination

provi-

sion

from the

manual.

See

Toussaint

v.

Blue

Cross

&

Blue

Shield,

408

Mich.

579,

598,

292

N.W.2d

880,

882

(court

rejected

employer's

argument

that

manuals

created

expectations

of

certain

benefits,

but

created

no

ex-

pectations

of job

security).

'Pugh

v.

See's

Candies,

Inc.,

116

Cal. App.

3d

311,

324,

171

Cal.

Rptr.

917,

925

(1981).

'2See

Id.

'Pine

River

State

Bank

v.

Mettile,

333

N.W.2d

622,

630

(Minn.

1983);

See

also

Pugh,

116

Cal. App.

32d

at

327,

171

Cal.

Rptr.

at

925

(employment

contracts,

like

other

agreements,

should

be

construed

to

give

effect

to the

intention

of

the

parties

as

demonstrated

by

the

language

used,

the

purpose to

be

accomplished

and

the

circumstances

under

which

the agreement

was made);

Toussaint,

408

Mich.

at

610, 292

N.W.2d at

890.

(Although

"employers are

...

free

to

enter into employment

contracts

terminable

at

will

without

assigning

cause

...

an employer's

express

agreement

to

terminate

only

for cause,

or

statements

of

company

policy

and

procedure

...

can

give

rise

to

rights enforceable

in

contract.")

'See

Decker,

Handbooks

and

Employment

Policies

As

Express

Or

Implied

Guarantees

of

Employment

-

Employer

Beware,

5

J.L.

&

COMM.

207

(1984-85).

Handbooks

or

employment

policies

promote an

awareness

of company

rules,

Id.

at

210,

create

order,

increase

employee

morale,

and

often

times

provide

for

procedural

mechanisms

for

handling

disputes.

Id.

at

211.

25408

Mich.

579,

292

N.W.

2d

880

(1980).

[Vol.

20:3

cause.'

26

The manual

becomes

"instinct

with an

obligation"'

7

because

the

ele-

ments of

offer,

acceptance,

and

consideration

are

met:

the

manual

constitutes

the

offer,

the employee's

continuing

in

employment

constitutes

the accep-

tance,

and

the

benefits

flowing

to

the

employer

as a

result

of

policies

expressed

in

the

manual

act

as

consideration.'

28

By

following

the

guidelines

set

out

in

the

manual,

the

employer enjoys

the

advantage

of

an orderly

and

loyal

work

force

through

a

uniform

set

of

rules

applied

fairly and

consistently

to

all

employees.'

29

An

agreement

not

to

discharge

except

for

good

cause

can

be

implied

even

where

no

elaborate handbook

is

distributed

by

the

employer.

In

Pugh

v.

See's

Candies,

Inc.,

30

the

court

recognized

that

the

employer's

conduct

in

dealing

with

its

employees

can

provide

the

basis

for limiting the

ability

to

terminate

at

will.'

As

examining

the

employer's

conduct

in

each

case

is

a

factual question,

relevant

circumstances

such

as

the

employee's

length

of

employment,

com-

mendations and reprimands, assurances

given to

him

or

her

by

the employer,

and other

evidence

of custom

is

subject

to scrutiny.'

Thus,

a

thirty-two

year

employee

who

provided

meritorious

service

to

his

company

stated

a

cause

of

'

26

1d

at

610,

292

N.W.

2d

at

890.

The

Toussaint

court

identified two

instances which

would

bind

the

employer

not

to

terminate the

employee

except

for

cause.

The

first

instance

involves

an

employer's

oral

representations

that

could

be

construed

as

a

promise

not

to

discharge

except

for

good

cause.

Whether

or not

these oral

representations

lend

themselves

to

a

". ..

construction...

that

the employer has agreed

to

give up

his

right to

discharge

at

will

without

assigning cause,"

Id.

at

610,

292

N.W.2d

at

890,

is

a

question

for the

jury.

Id.

at

613,

292

N.W.2d

at

891.

The

second

instance

involves

the

manual

itself. Id.

at

598,

292

N.W.

2d

at

884.

'"

7

Id.

at

613,

292

N.W.2d

at

892

(quoting

Wood

v.

Lucy, Lady

Duff-Gordon,

222

N.Y.

88,

118

N.E.

214

(1917)).

"'

Toussaint,

408

Mich.

at

615-16,

292

N.W.2d

at

893

(quoting

Cain

v.

Allen

Electric

&

Equipment

Co.,

346

Mich.

568,

78

N.W.

2d

296

(1956)).

The consideration

necessary

to

support

the

offer

(i.e.,

the

manual)

can

also

be

met

where

the

employee stays

on

the

job

and

does

not

exercise

his

right

to

leave.

See

Pine

River

State

Bank

v.

Mettile,

333

N.W.

2d

622,

627

(Minn.

1983).

'Toussaint,

408

Mich.

at

613,

292

N.W.2d

at

892.

The

Ohio Supreme

Court

has

not

expressly

ruled

whether

a

policy

manual

or

handbook

can

give

rise

to

an

implied

contract

term

to

be

discharged

only

for

good

cause.

However,

in

Hendrick

v.

Center

For

Comprehensive

Alcoholism

Treatment,

7

Ohio

App.

3d

211,

454

N.E.2d

1343 (1982),

the

court

of

appeals

held

that

the

trial

court

improperly

granted

the employer's

motion

to

dismiss

where

the

employee

alleged

that

her

employee

handbook

constituted

an

implied in

fact

agreement not

to

discharge

her except

for cause.

The

court

noted

that

questions of

fact

existed

as

to

whether

the

terms

and

conditions

in

the

manual

were

a

part

of

her

employment

contract.

Id.

at

213,

454

N.E.2d

at

1346.

Hedrick

was

cited

with

approval

by

the

Ohio

Supreme

court

in

Mers

v.

Dispatch

Printing

Co.,

19

Ohio

St.

3d

100, 104,

483

N.E.2d

150,

154,

where

the

court

stated

that

"employee

handbooks, company

policy,

and

oral

representations

have

been

recognized

in some

situations

as

comprising

components

or

evidence

of

the employment

contract."

One

lower

Ohio

appeals

court

has upheld

manual

provisions

relating to

discharge

of

the

employee.

See

Day

v.

Good

Samaritan Hospital

&

Health

Center, No.

CA-8062

(2nd Dist.

Ct.

App.

August

17,

1983)

(available

on Ohio

App. Dic.

on

Fiche

83-18-2d)

(court

held

that

manual

provisions

created

unilateral

con-

tract

which

obligated

the

employer

to

discharge

in

accordance

with

manual's

provisions).

13116

Cal.

App.

3d 330,

171

Cal.

Rptr.

917

(1981).

toId.

at

329,

171

Cal.

Rptr.

at

927.

See

also Cleary

v.

American

Airlines,

Inc., I

1l

Cal.

App.

3d

443,

168

Cal.

Rptr.

722

(1980);

Drzewiecki

v.

H

&

R

Block,

Inc., 24

Cal.

App.

3d

695,

101

Cal.

Rptr.

169

(1972).

"'Pugh,

116

Cal. App.

3d

at

329,

171

Cal.

Rptr. at

927;

See

also

Kochis

v.

Sears,

Roebuck

&

Co.,

No

CA-2175

(5th

dist

Ct.

App.

1984)

(available

in

Ohio

App.

Dec.

on

fiche

84-2-5d)

(Court

affirmed

jury

finding

that

employee's

at

will

agreement

modified

by

employer's

statement

to

employee

that

he could

not

be

fired

if

he

"did

a

good

job.")

COMMENTS

Winter,

19871

AKRON

LAW

REVIEW

action

for

wrongful

termination

upon

his

discharge

subsequent

to

a

dispute

with

the

company

union.

3

Finally,

the

doctrine

of

promissory

estoppel

3"

can

operate

to

impose

a

just

cause

requirement.'

35

In order for

the

doctrine

to

modify

an

otherwise

at-will

agreement, the

employer

must

reasonably

expect

that

the employee

will

rely

on the

representation

to

his

or

her

detriment

through

action

or

forbearance.'

36

Whether

the

elements of

promissory

estoppel are

met

is

a

question

of

fact.'

Although

the

doctrine

is

frequently

invoked

in

situations

where

the

employee

leaves

in

reliance

upon

a

new

employment

of-

fer

subsequently

revoked,

38

it

has

also

been applied

in

conjunction

with

the

employment

manual.

Not

only

does

the

manual

raise

certain

employee

expec-

tations,'

39

but

it

arguably

induces

some

type

of action

or

forbearance

in

addi-

tion.'

°

Promissory

estoppel

measures

the

reasonableness

of

this

conduct,

"

'

and

thus

offers

an

alternative

to

Toussaint

"2

and

its

focus on

whether

there

was

consideration

for

the

manual.'

3

CONCLUSION

Many

commentators

have

proposed

abolishing

the

employment

at

will

rule

through

statutory

enactment,'"

or

through

novel

legal

theories

inviting

'See

generally

Pugh,

116

Cal.

App.

330,

171

Cal.

Rptr.

917

(1981).

"'RESTATEMENT

(SECOND)

OF

CONTRACTS

§

90(l)

(1979)

defines

promissory

estoppel

as:

A

promise

which

the

promisor

should reasonably

expect

to

induce

action

or

forbearance

on

the

part

of the

promisee

of

a

third

person

and

which

does induce such

action

or

forbearance

is

binding

if

in-

justice

can

be

avoided

only

by

enforcement

of

the

promise.

The

remedy

granted

for

breach may

be

limited

as

justice

requires.

"

3

Mauk,

supra

note

3,

at

224.

"'Mers

v.

Dispatch

Printing

Co.,

19

Ohio

St.

3d

at

105,

483

N.E.2d

at

155.

'Id.

For

a

criticism

of

Mers

court's

resolution

of

the factual

issues

before

it

in

that

case,

See

Time

To

Col-

lapse

Another

Citadel,

supra

note

3,

at

n.

129.

"'See

Mauk,

supra

note

3,

at

224

and

cases

cited

at

n.

104.

Butsee

Frankart

v.

Jeep

Corp.,

No

L.-85-062

(6th

Dist.

Ct.

App.

November

8,

1985)

(available

on

Ohio

App.

Dec.

on

Fiche

85-25-6d).

In

Frankart,

a

laid

off

employee

contended

that

he

relied

on

his

employer's

promise

that

if

he

returned

to

work,

his

job

would

become

permanent

in

nature,

and that

as

a

consequence,

he

refused

employment

elsewhere.

He

returned

to

work,

and

was

subsequently

discharged.

The

Court

of

Appeals

upheld

the

trial

court's

dismissal,

stating

that

the

allegations

at

best

supported

the

inference

that

the

employee

was

hired

at

will.

However,

the

court's

analysis

only

begs

the

question

of

whether

the

at

will

contract

should

have

been

modified

due

to

the

representations made

by

the employer,

and whether

the

employee's

actions supported

a

claim

for

promissory

estoppel

relief.

'"See

generally

Toussaint

v.

Blue

Cross

&

Blue

Shield,

408

Mich.

579,

292

N.w.2d

880

(1980).

"'See

Hedrick

v.

Center

for

Comprehensive

Alcoholism

Treatment

7

Ohio

App.

3d

211,

214

454

N.E.2d

1343,

1346-47

(1982)

(court

held

question

of

fact

existed

as to

whether

statements

in

employee

manual

were

promulgated

"with

the

design

to

induce

[plaintiff]

to

remain

in

her

employment,

...

that

she

reasonably

believed

these

terms and

conditions

were binding

. . .

and

that

these

terms

...

induced her

to

remain

employed...").

"'See

supra

notes

135-137

and

accompanying

text.

2408

Mich.

579,

292

N.w.2d

880

(1980).

"'Promissory

estoppel

serves

as

a

substitute

for

consideration.

Murg

&

Scharman,

supra

note

I1,

at

359;

Time

to

Collapse

Another

Citadel,

supra

note

3,

at

418.

'"See

generally Bellace,

A

Right

of

Fair

Dismissal:

Enforcing

a

Statutory

Guarantee,

16

U.

MICH.

J.L.

REF.

[Vol. 20:3

judicial

application.'

45

However, practical

realities

militate against

statutory

repeal

of

the

rule,1'

while

judicially abolishing

the

rule

appears too

drastic

a

step

to

take

at

the

present

time.

Furthermore,

the

at

will

rule

retains

some

usefulness

in

the workplace

since

it

adequately

"responds

to

the

manifold

perils

of

employment

contracts..."I'll

Insofar

as

the

rule

is

also

subject

to harsh

results, states

like

Ohio

have

at-

tempted through

judicial

and

legislative

action

to balance

the

often

competing

interests

of

employer

and

employee.

Indeed,

the

Ohio Supreme'

8

Court

has

provided

the

underpinnings

for

a

modern

contractual

analysis

aimed

at

defin-

ing

the

true

intent

of

the

parties

to

an

at-will

agreement.

And the

Ohio

legisla-

ture

has

given

the

discharged

employee

on

occasion

a

modicum

of

protection.'

49

However, Ohio

courts

have

failed

to

recognize

that

substantial

public

policy

concerns

exist

within

its

Revised

Code. Where

certain

guidelines

exist

for

determining

public

policy,

courts

should

take

the

initiative and

imply

tort

remedies

for

its

breach.

In

light

of

Phung

v.

Waste

Management,

Inc.,

1

50

con-

vincing

a

court

that

it

is

the

proper

forum

to take

this

initiative

may

be

the

big-

gest

hurdle

to

clear.

BRIAN

WILSON

207

(1983);

Summers,

Individual

Protection

Against

Unjust

Dismissal:

Time

ForA

Statute,

62

VA.

L.

REV.

481

(1976).

1

4

See

Protecting

At

Will

Employees,

supra

note 3

(arguing

for

implied

contractual

duty

to

terminate

only

in

good

faith);

Defining Public

Policy

Torts,

supra

note

3

(business

judgment

rule should

be

applied

to

at

will

dismissals).

1'See

supra

notes

90-93

and

accompanying text.

"'Epstein

&

Paul,

supra

note

I

at

952.

"'Mers

v.

Dispatch

Printing

Co.,

19

Ohio

St.

3d

100,

483

N.E.2d

150 (1985).

"'See,

e.g.,

OHIo

REV.

CODE

ANN.

§ 2313.18 (Page

Supp.

1985)

(employer

liable

for

contempt

for

discharge

employee

summoned

for

jury

duty);

OHIo

REV.

CODE

ANN. §

4101.17(B)

(Page

1980)

(persons

between

ages

of forty to

seventy

discriminated

against without

just

cause

may

file

a

civil

action);

Oto

REV.

CODE

ANN.

§

4123.90

(Page

1980)

(employer

liable

in

damages

for

discharging

employee

who

files

compensation

claim).

1"23

Ohio

St.

3d

100, 491

N.E.2d

1114 (1986).

Winter,

19871

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