Risk & Insurance Online

In Ohio, failure to submit the formal employee handbook to the court is not automatically fatal to an employer's voluntary abandonment claim.

Case name: State ex rel. Galligan v. Industrial Commission of Ohio; Tenable Protective Services, Inc., No. 2009-0141 (Ohio 01/06/10).

Ruling: The Ohio Supreme Court reversed the Court of Appeals, holding the employee's termination for violating the employer's rules was a voluntary abandonment of her job for purposes of denying temporary total disability benefits.

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What it means: In Ohio, to be considered voluntary abandonment, a termination must arise from an employee's violation of a written work rule or policy that: 1) clearly defined the prohibited conduct; 2) had been previously identified by the employer as a dischargeable offense; and 3) was known or should have been known to the employee. The failure to submit the formal employee handbook to the court is not automatically fatal to an employer's voluntary abandonment claim.

Summary: A security officer filed a claim for benefits after she was terminated for misconduct. The employer denied the claim, arguing that the officer had voluntarily abandoned her job based on her discharge. The Ohio Supreme Court rejected the officer's position that the employer's failure to submit the company handbook prevented meaningful review of the written work rules that clearly defined the prohibited conduct. In lieu of the company handbook, the employer submitted the officer's disciplinary file. The court determined the officer's file satisfied the requirements that the prohibited conduct was previously identified, clearly defined, and known to the employee prior to her termination. The court held that a per se rule automatically precluding voluntary abandonment as a defense when the employee handbook was not submitted would deprive the Ohio Industrial Commission of the ability to consider other relevant credible evidence. It upheld the denial of temporary total disability benefits based on voluntary abandonment.

The court noted the employee had been disciplined with multiple official written warnings but continued to engage in the same conduct for which she was terminated -- sleeping at her post. She had accumulated two dozen oral and written citations for violating work rules, including inappropriate sexual remarks, breach of confidentiality protocol, timesheet irregularities, failure to remain at her post, and multiple incidents of tardiness/absenteeism, insubordination, and sleeping at her post.

Read more at the WORKERSCOMP Forum^TM homepage.

February 22, 2010

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