Employee fired after registering complaint is now suing? You could be personally liable

Here’s a new worry for Ohio HR pros who play a role in deciding whether to fire employees: You could end up being sued personally if it turns out that the discharge was wrongful under Ohio’s public policy exception to at-will employment.

That means your own assets—not just the company’s—are at risk.

Here’s how it works: In Ohio, employees generally are employed at will, meaning that—unless there’s an employment contract or other legal protection, such as under federal anti-discrimination laws—employees and employers alike are free to end the employment relationship anytime they choose.

However, the Ohio Supreme Court has ruled “an employer may not terminate an employee for a reason that is contrary to the clear public policy of this state.”

But what’s “an employer”? Ohio courts have interpreted the term to include management employees who act on behalf of their employers and recommend or participate in the decision to terminate employees.

If that decision is contrary to public policy, the management participants may be held liable for the harm their decision causes. And as if that weren’t enough, Ohio courts also impose an obligation on managers to “promptly correct any wrongful termination.”

Here’s how it all played out in a recent case.

Recent case: David Jenkins worked as an over-the-road truck driver for Central Transport until he was involved in a major accident. Jenkins claimed the accident was caused by faulty brakes, and thus wasn’t his fault. He also claimed that he had previously informed his company that the brakes weren’t working properly and complained about the way the entire truck fleet was maintained.

Central Transport investigated the accident, consulted with several managers and decided to terminate Jenkins. Jenkins’ supervisor gave him the bad news.

Jenkins sued the company, alleging he had been wrongly fired in retaliation for complaining about safety issues. Then he added more individual defendants to the lawsuit: all the managers involved in the termination decision, including his immediate supervisor.

Central Transport argued that there is no at-will exception for reporting safety problems, but the court disagreed. It ruled that firing an employee for reporting safety violations is grounds for a wrongful discharge claim because firing someone for doing so violates the public policy of keeping highways safe.

Then the court went on to say that managers who participate in the decision to terminate an employee for reporting safety problems can be personally sued because they have the responsibility to prevent such firings or to promptly correct a wrongful termination. (Jenkins v. Central Transport, No. 09-CV-525, ND OH, 2010)

Final notes: This case serves as a warning to HR professionals: You must not go along with decisions you know are wrong and potentially illegal. You have a duty to do more than turn a blind eye. You may have to act behind the scenes to reverse a wrongful termination in order to protect yourself from a potentially devastating lawsuit.

Your best bet is to seek legal advice before participating in questionable termination decisions. At the very least, get an attorney’s opinion. That should offer some proof you acted in good faith.