By Vincent J. Tersigni, Esq.

As we close the books on another successful year, those of us in the Employment Law Practice Group at BDB want to take a moment to thank all of our clients and friends for their support and to express our gratitude for the opportunity to be of service to you.  We had an eventful year as I became our practice group leader and we added four outstanding new lawyers to our group:  Gerald B. Chattman, Douglas J. Paul, and Natalie F. Grubb in Buckingham Cleveland^SM, and Jason Baasten in Buckingham Canton^SM.

This year we also had record attendance at our employment law seminars in Akron, Canton, and Cleveland, with nearly 200 total attendees.  If you were not able to join us this year, we look forward to hopefully seeing you there next year!  Please remember that our practice group lawyers are available to conduct training seminars for your employees directly at your office.  If you would like to receive a list of training seminar topics, please contact Lorna Henderson in our Client Relations Department at 330.258.6473.

Best wishes to you and your families for a happy holiday season and a prosperous new year!

Vincent Tersigni is a Shareholder and the Employment Law Practice Group Leader.  He can be reached at vtersigni@bdblaw.com or 330.258.6552.

Workers’ Compensation Drug Testing Statute Declared Unconstitutional
By Brett L. Miller, Esq. And Vincent J. Tersigni, Esq. 

On December 18, 2002, the Supreme Court of Ohio declared in State ex. rel. Ohio AFL-CIO v. Ohio Bureau of Workers’ Compensation, 2002 Ohio 6717 (2002), that the drug testing provisions in Ohio’s Workers’ Compensation statute are unconstitutional.  This decision is another blow to the ability of Ohio employers to defend workers’ compensation claims, and is the latest in a series of decisions that have liberalized Ohio’s workers’ compensation system in favor of claimants.

The statute at issue, Ohio Revised Code §4123.54, was amended in April, 2001 by the Ohio legislature to create a rebuttable presumption that a workplace injury was the result of an employee’s intoxication if the employee failed or refused to undergo a drug or alcohol test after suffering a workplace injury.  In order for the rebuttable presumption to apply, it was necessary under the statute for the employer to specifically advise employees that the failure to pass a drug or alcohol test, or the refusal to take such a test, could adversely affect their ability to receive workers’ compensation benefits.  The statute not only provided Ohio employers with an additional defense against workers’ compensation claims caused by alcohol or drug use, but it also embraced and supported the concept of maintaining safe, drug-free workplaces.

Unfortunately, in State ex. rel. Ohio AFL-CIO, the Supreme Court found that the statute was unconstitutional because it permitted warrantless drug and alcohol testing of injured workers without any individualized suspicion of drug or alcohol use, in violation of the protections against unreasonable searches contained in the Fourteenth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.  While the U.S. and Ohio Constitutions do not normally apply to Ohio’s private sector employers, the Court found that there was “state action” involved because the “final word” on eligibility for workers’ compensation belongs to the state.  Therefore, according to the Court, the state cannot inflict on employees a detriment to receiving workers’ compensation because the employees have refused to agree to a warrantless search in the form of a drug or alcohol test. 

Despite this decision by the Supreme Court, employers should not abandon their alcohol and drug programs.  Such programs have been proven to increase workplace safety, reduce accidents, and reduce workers’ compensation costs.  While the Supreme Court did find the drug testing provision of the Workers’ Compensation statute to be unconstitutional, the decision does not prevent Ohio employers from still seeking to deny a workers’ compensation claim because the employee was under the influence of drugs or alcohol at the time of the accident.  The decision does, however, substantially limit the employer’s ability to establish this defense.  Should you have any questions regarding this decision, or how it affects your workers’ compensation or substance abuse prevention programs, please contact any member of the Workers’ Compensation or Employment Law Practice Group at the firm.

Ohio Supreme Court Rejects FMLA Public Policy Claims
By Julie M. Young, Esq.

The Ohio Supreme Court recently gave Ohio employers a significant victory in the case of Wiles v. Medina Auto Parts, 96 Ohio St.3d 240 (2002).  In Wiles, the Court held that Ohio does not recognize a public policy claim based on the Family and Medical Leave Act (FMLA), which is a departure from a progressive law of public policy cases issued by the Court. 

Since it was first recognized in Ohio in 1990, the public policy exception to the employment at will doctrine has held that an employer cannot discharge an employee where the discharge is in violation of a statute or other source of law.  In essence, if an employer violates a statute or other law, it has also violated the public policy embodied in that law.  In its early years, however, public policy claims were limited to those situations where a statute did not provide a remedy for the violation (for example, where the employer, for whatever reason, was not subject to the statute, but nevertheless violated the public policy embodied by it). 

In 1997, the Ohio Supreme Court issued its decision in Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134 (1997), which made public policy claims available even if the statute provided specific remedies for a violation.  Consequently, where a statute provided some but not all remedies, an employee could also sue for a public policy violation in addition to the statutory claim.  Thus, even if a statute allowed an employee to recover back pay, front pay, and compensatory damages, an at-will employee could still sue under the public policy exception to pursue other remedies such as reinstatement or attorney fees.

While Kulch significantly expanded the law of public policy in Ohio and effectively allowed plaintiffs to tack a public policy claim onto every other cause of action, the recent Wiles case signified a shift away from unbridled public policy exceptions.  In Wiles, the employee had requested and was granted two weeks of FMLA leave.  Upon his return, the employer made adverse changes to the employee’s job and he eventually resigned.  The employee sued, claiming only a public policy violation based on the FMLA.  For reasons unknown, the employee did not sue under the FMLA itself.  The Ohio Supreme Court held that “Ohio does not recognize a cause of action for wrongful discharge in violation of public policy when the cause of action is based solely on a discharge in violation of the FMLA.”

In reaching its decision, the Court departed from Kulch’s expansive view that if the statute did not provide all possible remedies then a public policy claim was available.  Instead, finding that the FMLA provided comprehensive but not exhaustive remedies, the Court held that when a statute’s remedial scheme is sufficiently comprehensive to give an employee a meaningful opportunity to place himself in the same position he would have been in absent the statutory violation, then no public policy claim is available.  The Court also noted that even if the statutory scheme was not sufficiently comprehensive, a court would still need to consider hether the legislature intended to make the statutory remedies exclusive. 

The Wiles decision not only benefits employers because it disallows a public policy claim based on the FMLA, its reasoning can also be used to argue for the narrowing of public policy claims based on other statutes, such as the workers’ compensation retaliation statute. 

In Summit County, Consideration Beyond Continued Employment Is Necessary To Support A Covenant Not To Compete
By Jan E. Hensel, Esq.

In a recent decision, the Ninth District Court of Appeals reversed its prior position on the issue and held that, “a covenant not to compete agreement entered into after an employee’s initial hire is invalid if the agreement is merely supported by a promise of continued employment.”  Lakeland Employment Group of Akron, LLC, v. Lee Columber, 2002 Ohio 5551.  The Ninth District is the appellate court with authority over Lorain, Medina, Summit, and Wayne counties.  Prior to the Lakeland decision, the Ninth District had been in accord with the majority of Ohio districts which hold that continued at-will employment is sufficient consideration to support a covenant not to compete. 

Consideration, which means something of value, is necessary for an agreement to be enforceable.  Because either party to an at will employment relationship can terminate the relationship at any time for any reason (except an illegal reason), most Ohio courts have ruled that continued at will employment is sufficient consideration for an agreement not to compete with the employer.  Under this view, the consideration given by the employer to support the employee’s promise not to compete is the continued employment.  However, the Ninth District has now joined the Sixth District (Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams, and Wood counties) and the Eleventh District (Ashtabula, Geauga, Lake, Portage, and Trumbull counties) in holding that continued at will employment is “not” sufficient consideration to support a covenant not to compete. 

Until the Ohio Supreme Court decides this issue, each appellate district in Ohio has the authority to decide whether continued at-will employment provides sufficient consideration for enforcement of a non-competition agreement.  As demonstrated by the Ninth District’s reversal of its prior position on this matter, it is unsafe for “any” Ohio employer to expect continued at will employment to be sufficient consideration to support a covenant not to compete.  Thus, unless the employee signs the covenant not to compete on the first day of employment, the employer should always provide additional consideration when asking employees to sign non-competition agreements.  A signing bonus or increased employment benefits will provide the necessary consideration.  For help in structuring enforceable covenants not to compete, feel free to contact any member of BDB’s Employment Law Practice Group.

Are Your Cell Phones Dialing Up Liability For Your Business?
By Natalie F. Grubb, Esq.

It is often said that talk is cheap, but not when it’s on a cell phone and the distraction leads to a motor vehicle collision.  Throughout the country, courts are holding employers responsible for injuries to third parties caused by their employees’ negligent use of cell phones, pagers, and other electronic communication devices.  A recent study revealed that cell phone users cause 2,600 deaths and 330,000 injuries each year in motor vehicle accidents in the United States. Some areas, including the State of New York, and the City of Brooklyn, Ohio have placed restrictions on cell phone use while driving.

In order to avoid potential workers’ compensation claims from employees injured while using cell phones while driving and potential negligence claims from the third parties, many employers have implemented policies restricting employee use of cell phones while driving a vehicle or operating other equipment.  Obviously, employers need to weigh the value of employee use of cell phones while driving, including increased efficiency and productivity, with the potential danger of motor vehicle collisions.  Should you need assistance in drafting a personnel policy on this issue, the members of our Employment Law Practice Group are available to assist you.

Congratulations to Vincent J. Tersigni for becoming certified by the Ohio State Bar Association as a specialist in Labor & Employment, effective January, 1, 2003.

If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs, LLP make a presentation to your organization, please contact: Cheryl Warren, Director of Client Relations and Marketing at cwarren@bdblaw.com or 800.686.2825 ext. 546.


If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs, LLP make a presentation to your organization, please contact: Cheryl Warren, Director of Client Relations and Marketing at cwarren@bdblaw.com or 800.686.2825 ext. 546.