Recently, the 10th District Court of Appeals posed the following rhetorical question to itself: “Can you be accused of assaulting your boss, get fired, be convicted (by plea, no less) of the assault, be at least preliminarily barred by court order from even setting foot in that workplace, and then still gain subsequent temporary disability status under Workers’ Compensation in connection with your (former) job?” Upon reviewing an extensive record and impassioned arguments from the employer, the court answered the question in the affirmative.
No doubt, State ex rel. Welsh Enterprises, Inc. v. Indus. Comm., 2020-Ohio-2801 (May 5, 2020) is a case which will cause great consternation and frustration for Ohio employers. In this case, the claimant, after returning to work after a period of disability, became engaged in an altercation with the company’s owner. The owner accused the claimant of assaulting him and fired the claimant on the day of the altercation, which was September 14, 2017. A police report reflected the owner’s allegation of assault and the claimant’s allegation of self-defense. Two months thereafter, the claimant pleaded no contest to the charge of assault.
The employer had a written work rule prohibiting fighting on company property. Company documents showed the claimant signed an acknowledgement to the rule. The employer also had a work rule providing conviction of a felony or misdemeanor may result in termination. Notably, the employer did not document the reasons for the termination.
Sometime after his termination, the claimant filed for temporary total disability (TTD) compensation. The employer defended the motion and the ground that the claimant was not entitled to compensation because he violated the two written work rules (the Louisiana-Pacific defense). However, a staff hearing officer granted the claimant’s TTD compensation request, finding the claimant’s account more credible than the employer’s. First, the SHO did not believe the claimant assaulted the employer based on the claimant’s testimony. Second, the SHO found the employer’s bases for termination not credible in light of the lack of documentation, but more importantly, because of the employer’s contention that the claimant was terminated for his no contest plea and conviction. The SHO noted the claimant was convicted two months after his termination, and therefore, the conviction could not have motivated the decision to terminate the claimant as the conviction had not occurred at the time of termination.
The employer challenged the SHO’s order in a mandamus action, where the court employed a “some evidence” review standard. In large part, the employer argued the weight of the evidence supported its position. Nevertheless, the court of appeals denied the employer’s writ because questions about the weight of the evidence and credibility are within the province of the hearing officers. Because the SHO had some evidence upon which to base the decision, the court of appeals upheld the order.
This case illustrates employers are not insulated in their termination decisions merely because they have compelling arguments. At first blush, one may think the SHO and the court of appeals acted as “super personnel departments.” However, the real question under a Louisiana-Pacific defense is whether the evidence supports the argument that the employer terminated the employee under a written work rule. Here, the was a question of fact whether the claimant had actually engaged in a fight, as the claimant testified he was not the aggressor and had merely pushed the employer. In addition, the employer failed to document the termination, which meant the SHO had to rely on testimony to determine whether, in fact, the employer terminated the employee for the stated reasons. More importantly, the employer compromised its own credibility when it argued it terminated the claimant for his conviction, when the conviction occurred two months after termination.
To be successful in a Louisiana-Pacific defense, employers must document the bases for termination at or near the time of termination, specifically state the applicable written work rule supporting termination, and ensure that the bases for termination did, in fact, motivate the termination decision.