The Ohio 3rd District Court of Appeals clarified the standards for wrongful termination in violation of a public policy as they relate to an employee who was terminated after he left his work area to use the restroom.
What happened. Mark Zwiebel worked as an at-will employee for Plastipak Packaging for more than 25 years. He was a production technician and operated machinery that molds plastic bottles for beverages. On Dec. 30, 2011, he left his work area three times.
The first time, Zwiebel tried to find another employee to watch his production line while he used the restroom, but he couldn’t locate anyone who was available. He left the work area anyway. Upon returning to his production line, he was reprimanded by a supervisor for leaving the work area without finding someone to cover for him. He then left a short while later to take a 10-minute break, asking a coworker to monitor his line.
The third time Zwiebel left the work area, he notified his team leader that he was taking his lunch break and asked her to cover his line. Although there was some dispute about whether the team leader said she would cover for him, Zwiebel’s line was again left unattended. It jammed, resulting in 100 bottles being lost.
Before the incidents on Dec. 30, Zwiebel had a “final communication” in his record for a previous unrelated infraction. The warning stated that he would be terminated for any further workplace violation. Plastipak terminated him on Jan. 4, 2012, for leaving his work area unattended several times on Dec. 30.
Zwiebel filed suit in the Common Pleas Court for Shelby County, alleging that Plastipak wrongfully terminated him in violation of public policy. He argued that the company essentially terminated him for using the restroom during his shift, which violated a public policy embodied in the Occupational Safety and Health Administration’s (OSHA) regulations that states employees must have regular access to restrooms.
The common pleas court dismissed the case at the summary judgment stage (i.e., without a trial), agreeing that regular restroom access is a legitimate public policy but finding that Plastipak’s action didn’t violate that standard. Zwiebel appealed the dismissal of his case to the 3rd District Court of Appeals.
What the court said. The court first reiterated the basic standards of at-will employment in Ohio, stating that an “employer-employee relationship is presumed to be at-will and subject to termination by either party for good cause, bad cause, or no cause at all, so long as the termination is not contrary to law.” One such violation of law occurs, the court said, when an employer terminates an employee in violation of a clear public policy articulated in the U.S. or Ohio constitutions, federal or Ohio statutes, regulations, or common law. These “wrongful termination in violation of public policy” claims require the employee to show that (1) a clear public policy exists, (2) the circumstances involved in his termination would jeopardize the public policy, (3) his dismissal was motivated by conduct related to the public policy, and (4) the employer lacked a legitimate business justification for its actions.
The court found that Zwiebel demonstrated the first element—OSHA requires that employees have regular access to restroom facilities with reasonable restrictions. However, the court found that he failed to meet the second element—that Plastipak’s actions jeopardized the public policy of restroom access.
The court noted that Zwiebel wasn’t terminated for using the restroom; he was terminated for leaving his work area unattended. If he had found someone to cover his line while he used the restroom, he wouldn’t have been terminated. Further, the court said it was “irrelevant” to Plastipak that he used the restroom when he left his work area. He could have left to get a snack or make a phone call, and he would have received the same discipline. As a result, the court upheld the lower court’s dismissal of his claim.
Zwiebel v. Plastipak Packaging Inc., 2013-Ohio-3785, 3d Dist. Ct. App. (2013).
Professional Pointer: Employers should be aware that a wrongful termination claim will often follow the discharge of an at-will employee that is, as the court stated, “unfair, arbitrary, extreme, and perhaps unwarranted.” The employer in this case ultimately prevailed, but only after a few years of litigation and the associated costs. Even though at-will employees can be terminated without cause, you should con- sider whether your actions might be vulnerable to challenge because the termination seems unfair or extreme in light of the actual rule violation, the employee’s past disciplinary record, or his tenure with the company.
Contributed by BLR®—Business & Legal Resources. Read plain-English analysis on Termination (with Discharge) in Ohio.