oyi0l^q1 - Supreme Court of Ohio Assistance Foundation. OSLSA provides direct service to 30 southeastern Ohio counties through its Southeastern Ohio Legal Services program (SEOLS),

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Case No. 2010-1166IN THE SUPREME COURT OF OHIO

Bridgeway, Inc. et. al.,Appellants,

V.

Mary H. Williams,Appellee.

On appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District

MERIT BRIEF OF AMICI CURIAELEGAL AID SOCIETY OF CLEVELAND AND OHIO STATE LEGAL SERVICES

ASSOCIATION IN SUPPORT OF APPELLEE MARY H. WILLIAMS

Fred J. Pompeani (0001431)(COUNSEL OF RECORD)Rebecca A. Kopp (0077332)Porter Wright Morris & Arthur LLP925 Euclid Avenue, Suite 1700Cleveland, Ohio 44115(216) 443-9000Fax No. (216) [email protected] For AppellantBridgeway, Inc.

Alexandra T. Schimmer (0075732)(COUNSEL OF RECORD)Laura Eddleman Heim (0084677)Laurel Blum Mazorow (0021766)Assistant Attomey General30 East Broad St., 17th FloorColumbus, OH 43215(614) 466-8980Fax No. (614) [email protected] for Amicus Curiae

Gordon J. Beggs (0005681)(COUNSEL OF RECORD)Kenneth J. Kowalski (0024878)Jill Murphey, Legal InternEmployment Law ClinicCleveland-Marshall College of Law2121 Euclid Avenue, LB 138Cleveland, Ohio 441 1 5-22 14(216) 687-3947Fax No. (216) [email protected]

Anita L. Myerson (0022248)(COUNSEL OF RECORD)Legal Aid Society of Cleveland1223 West Sixth StreetCleveland, Ohio 44113(216) 861-5607Fax No. (216) [email protected] for Amici Curiae

AND

JAN 13 Z019CLERK OF CpURT

SUPREMgCOURT OF ®HIO

Thomas W. Weeks (0028992)Ohio Department of Job and FamilyServices555 Buttles AvenueColumbus, Ohio 43215-1137(614) 221-7201Fax No. (614) [email protected]

TABLE OF CONTENTS

TABLE OF AUTHORITIES...

STATEMENT OF AMICI INTEREST ................. ....... .. . . ......... ........ ........ 2

A. Ohio State Legal Services Association ............. ......... ......... ....... ......... .. . ........ 2B. Legal AidSociety of Cleveland... .... . ..::.. ...... .. .............. ........ .......... .. . . . .... ......... ...<..... 3

INTRODUCTION . ....... .... . ......:. .......... ... . ... . . ..... ........ . . . ...... ... ...... ... . ........... ....... . ......... 4

STATEMENT OF TI3E FACTS AND CASE ..:: ... .......,. .:;... ...<................. . ... . .. ..... .... 5

ARGUMENT...:.:.: ..... ....-......... :: ..... .:.:... . .., ., .. . ... ... ,.. . . .. . ..... . . .... ....,.... 5

Amici Curiae's Proposed Proposition of Law ........: ......... .. .. ..... . ....... ......... 5

ODJFS Misstates The Purposes Of Unemployment Compensation-Unfair;Discriminatory, And Illegal Treatment By An Employer Is Relevant In ADetermination Of Whether An Unemployment Claimant Is Entitled toUn.employment Benefits ..... ......... ....... ......... ............. .................................. . ......... .................. 7

Appellant and Amici ODJFS Misstate the Application of'I'he Tzangas Case , .,. .......... .... 9

Appellant's And ODJFS's Application of Tzangas Is Contrary To Language In TheOpinion Itself ......... ... .... ... . . ....... .... .... ......... ... .... . . . .... ......... ..... ...... .. ... .. .. .. .....:. .,.....,. 9

The ODJFS Office Of Unemployment Compensation Has Not Interpreted TzangasIn The Manner Suggested By Amicus ODJFS; Instead It Limits The Use Of TheTzangas Four Prong Test To Cases Involving Unsatisfactory Work Performance ..............12

Courts Of Appeals Have Generally Limited The Application Of Tzangas' FotirProng Test To Cases Involving Suitabilityl Work Performance .......................................... 14

Where An Employee Is Discharged In Violation Of A Work Rule, Established CaseLaw Provide That The Faimess Of The Work Rule Is Relevant To The Inquiry OfWhether The Discharge Is For Just Cause ... ....... .............. ..... .... . ......... -,....:............18

The ODJFS Office Of Unemployment Compensation Policy Guide Provides ForReview OfWhether A Work Rule Is Known, Reasonable, And Uniformly Appl"xed....... .,.18

Ohio Cases Evaluate Work Rule Violation Cases Consistently With TheUnemployment Compensation Policy Gttiide ......... ......... ......... .................. 20

Sumxnary...... ....... ......... ..... ......... ......... ......... ....... ......... ....... ......... ... ......... ......... ......... 22

COIVCLUSION.... ....... ......... ....... ......... .. ......... ........................ . ........ .................. 24

CERTIFICATE OF SERVICE ......... ......... ......... ......... ........ ....... ......... .......... 25

TABLE OF AU`fHORI7TES

Cases:

Apex Paper Box Co. v.Administrator, OEES; (Ohio Ct: App.8s' Dist. May 11, 2000) 200D WL573174 .. . ._....: . ... . . . 21... . ..... ...... . .......

Ash v. Board ofRevietiv (1986), 26 Ohio St.3d 158 ....... . ........ , 12

Booth v, Adnnnistrator OBES" 1999 WL 476092 (Mahoning County Juna 30, 1999) . ... ..$;13

Corbin v. Ohio Bureau ofEmployment Services (1991), 77 Ohio App:3d 6267632 (Franklin Cty.)

..... .... ..... ....:........_..... ........... .... ... ....... ......... ....... ......... ............. .,„ ......... .........9

Durgan v Ohio Bureau of EmpXa}nnent Services, 110 C?hio App.3d 545, 549 (Lorain County

1996) .,.... ...... ......_ .. 9Ciles v. Wtths (1981) 2 Ohio App 3d 335 (8th Dist.)..... :, ., .......... , , .-- • 7Harp v: Administrator,12Ohio Nhse. 34 (Conmnon Pleas, HamiltonCounty 1967). .........4

/rvine v. Unemploy»rent Comp. Bd ofRev. (1985), 19 Ohio St.3d 15.. ...... .:: ......: 17

Jarnes u Ohio StatE Unemplo,ytuent Review Comniission, 2009'WL 3089168, 2009-Ohio-5120

(10th Dist.) --....:. ........ ..... ...... . .................. .... .......... ...... .... .. ......... ..,.°-18.JaAnn Jnnes v Administrator (2000), 2000 WL 1670681, CCH llnempl Ins. Reptr. 10,013,

2000-Ohia-224(7th Dist.) ...... ......... : ........ ..,...... ..... ......... ....... ,......... 7

Mary Kahoavski u OBES, 1985 WL 7789 (11th Dist)....... ............. ....,. .....„ ...-•. 8

McCarthy v. Connectronies Corporation,183 Ohio App,3d 248, 916N.E.2d 871, 2009 Ohio

3392(6th DisL) e. ..... ....... ..... ...... .... .......... .. .... ................. _. 17McGinnis 4 Associates, lnc. v. Snack, O(Ohto Ct. App.10t° Dist.), 1996 WL 751539 21

Sc(nrltWuliernmer'sFurnitare(1976)32OfiioApp.2d.161 ........ ; ,.-•.,.: .13

Seflersv. &oardofReview (1981)1 Otia App-3d 161.. ... .. ... ... . ........ .... . .- -••12

Shessier v. Adininistrator (1987), CCH Unempl. lns_ Reptr. Ohio 9755 (Ct. App. Ottawa) .21

Sinde70. EBCOMarrufacturing; (1991) 71 Ohio App3d426 (10a` District) ....... ... .........-.....,...21

Sneldi+tg v. Board ofReview (1991) 64 Ohio App.3d 261 (10ei Disl) ... ....... ... ...... ... .......... 21

Snelling v. Boardo,jReview (1991), 64 Ohio App3d 261 (10th Dist:) ... 8

Talley w Coe [11th Distriot 2002-L015, 2003 Ohio 1395 2003 WT.f 14798071. ...,.. 22T=angas, Plakas & Mannas v. Ohio Bur. OfEmp. Services (1995),73 Ohio 81.3d 694 ..... ..... 2 23

Warneru Keystone Automotivetndusttde;s, /nc.,2009 WL 2004384,2009-Ohio-3396 (6th Dist.),

.. ..... .......... ...... ..... ........ : ... ....... ....16. ... ,....... .....; ,,. ........ . ........ .. ....

Yougtiiogheny and Ohio Coal Co . v. Osnst, 23 Ohia St:3d 39 (1986) .. .....:. .... ...... .>....... 8

STATEMENT OF AMICI INTEREST

A. Ohio State Legal Services Association

The Ohio State Legal Services Association (OSLSA) is a nonprofit corporation formed in

1966 for the purpose of bringing free civil legal services to low-income Ohioans. OSLSA

receives most of its funds from the federal Legal Services Corporation and the Ohio Legal

Assistance Foundation. OSLSA provides direct service to 30 southeastern Ohio counties

through its Southeastern Ohio Legal Services program (SEOLS), which has offices in nine

southeastem Ohio communities, and to Franklin and five neighboring counties through the Legal

Aid Society of Columbus. OSLSA also provides service to all of Ohio's legal aid societies

through the Ohio Poverty Law Center in Columbus. These support services include training,

publications, task force coordination, and substantive specialty assistance.

Public benefits in general, and unemployment compensation in particular, are of central

importance to OSLSA as the primary provider of service in central and southeastern Ohio and as

the support entity for the entire state. SEOLS and the Legal Aid Society of Columbus provide

representation to many unemployment compensation claimants who are facing the loss of

unemployment compensation benefits due to an allegation of discharge for just cause. The

standard to be applied in those cases, and the scope to be given to Tzangas v. Ohio Bureau of

Employment Services (1995), 73 Ohio St.3d 694, is of great interest and concern to OSLSA and

its clients. In this era of welfare reform and emphasis on work, OSLSA's clients depend on a

changing safety net. As more low-income families depend on work rather than welfare

payments, the integrity of the unemployment compensation system assumes greater and greater

importance in their lives. The reduction in coverage threatened by the reading of Tzangas

advanced by amicus Ohio Department of Job and Family Services would be terribly damaging

for the low-income families served by OSLSA.

B. Legal Aid Society of Cleveland

The Legal Aid Society of Cleveland (LASC) is a nonprofit corporation formed in 1905

for the purpose of providing free legal assistance to low income people. LASC receives fands

from the federal Legal Services Corporation, the Ohio Legal Assistance Foundation, and various

foundations and donors. LASC represents low-income individuals with civil legal problems in

Cuyahoga, Lorain, Lake, Geauga, and Ashtabula Counties. The Legal Aid Society of

Cleveland's mission is "to secure justice and resolve fundamental problems for those who are

low income and vulnerable by providing high-quality legal services and working for systemic

solutions." In 2010, LASC represented and advised over 420 individuals in unemployment cases

and matters.

The issues in this case are of concern to the clientele of the Legal Aid Society of

Cleveland. LASC has seen numerous clients in recent years who have lost their jobs due to their

inability to pass a test or obtain a license. Moreover, the Appellants' broad arguments about the

nature of unemployment benefits potentially affect many other claimants for unemployment

benefits, and would limit their access to unemployment benefits. Our clients might lose the

important protection of unemployment benefits if the rigid and inflexible standard asserted by

the Appellants is adopted by this court.

INTRODUCTION

The issue in this case is whether unemployment claimant Mary Williams was discharged

without just cause pursuant to RC § 4141.29(D)(2)(a) when she was discharged by Bridgeway,

Inc. after she was unable to pass a test. An evaluation of whether there was just cause for

discharge pursuant to the unemployment statute requires an examination of whether claimant's

actions demonstrated fault sufficient to deny her the protection of unemployment benefits. This

evaluation must also include an analysis of whether the rule or policy that led to her discharge

was fair and fairly applied.

Amici file this brief to address assertions contained in the Merit Briefs of Appellant

Bridgeway, Inc. and of Amicus Curiae Ohio Department of Job and Family Services which

misstate settled Ohio law on just cause for discharge. Their arguments incorrectly state that the

standard of Tzangas, Plakas and Mannos v. Administrator, Ohio Bureau of Employment Servs.

(1995), 73 Ohio St. 3d 694 for discharge due to unsatisfactory work performance (unsuitability)

should be applied to this case which does not involve unsatisfactory work performance and they

further infer that this standard would apply to all discharge cases. Further, they assert that the

four prong factors of the Tzangas test for cases involving unsatisfactory work performance

should be applied in a rigid fashion which does not examine the circumstances leading to the

violation of the rule or the reasonableness of the employer rule as it is applied to the facts of the

case. Moreover, Appellants incorrectly argue that issues such as whether a work rule is fair and

fairly applied or even whether claimant's legal or constitutional rights have been violated are not

relevant to a determination of whether the claimant is entitled to unemployment benefits. Such

assertions would overturn decades of unemployment law, policy, and practice.

STATEMENT OF THE FACTS AND CASE

Amici adopt and incorporate the Appellee's Statement of the Facts and Case.

ARGUMENT

Amici Curiae's Proposed Proposition of Law:

Where a claimant for unemployment compensation has beendischarged for failure to pass a test, the facts must be evaluatedto determine if the claimant was at fault. The claimant isdischarged without just cause where an examination of thefacts and circumstances shows that the claimant was withoutsufficient fault to warrant depriving her of unemploymentcompensation. In determining fault, factors such as unfairapplication of a work rule are relevant.

The critical question in this case is the standard to be used in evaluating whether an

employee was discharged for just cause pursuant to R.C. § 4141.29(D)(2)(a) where the claimant

was discharged for failure to pass a test. This analysis requires an examination of the Court's

decision in Tzangas, Plakas and Mannos v. Administrator, Ohio Bureau of Employment Servs.

(1995), 73 Ohio St. 3d 694, which discussed the general fault analysis to be used in evaluating

just cause for discharge. The Tzangas court also established a specific four prong test to be used

in cases involving discharge of an employee who is discharged for unsatisfactory work

performance. The claimant in Tzangas was discharged for failing to adequately perform her job

duties and her benefits were allowed at the administrative appeal level on the basis that she was

without fault due to ìnability to perform.' 73 Ohio St.3d at 695. This Court then categorized this

type of discharge as involving one who is ùnsuitable' for work and adopted the four prong test

for this type of discharge. Appellant employer and Amicus ODJFS argue that the specific four

prong test involving unsatisfactory work performance should be applied to this case even though

there is no evidence that claimant was not performing satisfactory work; indeed, they argue that

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the four prong test is to be applied in a rigid fashion that does not consider either the reasons why

claimant was unable to pass the test or the reasonableness of the employer's requirement as

applied to the claimant's facts. [Appellant's Brief at 5-9; ODJFS' Brief at 1-2, 6-8.]

The Appellants' position is of concern because a discharge for failure to pass a test

requires a general fault analysis instead of the specific four prong test designed to evaluate

unsatisfactory work performance. Moreover, the Amicus ODJFS argues that the analysis of an

unemployment case cannot consider whether there is an unfair application of a rule, or even

whether there is discriminatory or illegal treatment of the employee. [ODJFS' Brief at 1-2, 5-12,

Appellant's Brief at 6-8.] If such an approach were to be followed, it would be a radical change

from the manner in which the unemployment agency and courts in Ohio have interpreted

discharge cases for decades.

Of further concern is the Appellants' implicit argument that the Tzangas four prong test

applies to all discharge cases. [Appellant's Brief at 5-8 ; ODJFS' Brief at 1-2, 5-6], Amici are

concerned because there are many other sorts of discharge situations such as: discharge for

violation of work rules, discharge for absenteeism, discharge for profanity, discharge due to drug

and alcohol use and testing, discharge for refusal of work due to religious or moral objection,

discharge due to violation of a progressive discipline system, etc. Each type of discharge is

evaluated to determine whether the claimant is at fault, applying the factors relevant to that

situation. There is insufficient space in this brief to explain and examine all of these types of

discharge situations and the proper analysis to be used in each situation. Thus, Amici urge this

court to limit its ruling to the circumstance of this case, namely, that of an individual discharged

for failure to pass a test.

ODJFS Misstates The Pun2oses OfUnemnloyment Compensation-Unfair Discriminatory,And Ille al Treatment By An Em lo er Is Relevant In A Determination Of Whether AnUnemployment Claimant Is Entitled to Unemnlovment Benefits

The federal unemployment insurance system was created by Congress as part of the

Social Security Act of 1935'. The program focused on the plight of unemployed workers and

was intended to enable them to `tide themselves over, until they get back to their old work or

fmd other employment without having to resort to relief."2 An unemployed individual

(hereinafter `claimant') in Ohio may receive unemployment benefits if, among other factors, the

claimant was discharged without just cause in connection with work. R.C. § 4141.29 (D) (2) (a).

The Amicus ODJFS misstates the purposes of the unemployment compensation system

where it argues that the unemployment agency cannot consider whether an unemployment

claimant was treated unfairly by a former employer and indeed, it asserts that the unemployment

agency cannot even consider whether the claimant's former employer discriminated against or

discharged the unemployment claimant in violation of state or federal law. (ODJFS' Brief at 1-

2, 8-10). We are concerned that this mischaracterization of the unemployment system may

distort this Court's analysis in this case.

It is well established law that a discharge for a discriminatory reason or in violation of

state or federal law is a discharge without just cause. Giles v. Willis (1981) 2 Ohio App. 3d 335

(8th Dist.) (discharge without just cause for conduct protected by the U.S. Constitution and

federal labor law); JoAnn Jones v. Administrator, 2000 WL 1670681, CCH Unempl. Ins. Reptr.

10,013, 2000-Ohio-224 (7th Dist.) (discharge for federally protected conduct is discharge

without just cause); Mary Kohowski v. OBES, 1985 WL 7789 (11th Dist) (discharge without just

1 Act of August 14, 1935, ch.531, 49 Stat. 620. The federal statute refers to unemploymentìnsurance,' as do most state statutes. Ohio uses the term unemployment `compensation,' but itis the same program and fully conforms to the federal standards for an unemployment insurance

Frogram.H.R. Rep. No. 615, 74th Cong., 1st Sess. 7(1935).

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cause where employee discharged for attempting to participate in the unemployment

compensation system); Snelling v. Board of Review (1991), 64 Ohio App.3d 261 (10th Dist.)

(discharge without just cause where discharge for violating policy which was adopted illegally).

Indeed, the court stated in Snelling:

Clearly the board of review has not only the jurisdiction to

consider whether a person has been fired for violation of an illegalpolicy but, in fact has the obligation to consider that issue in

determining whether or not a person has had his or herunemployment terminated for just cause.

64 Ohio App.3d at 264.

Appellant correctly states that there is a difference between an employer's right to

discharge an employee and the right to unemployment compensation benefits. The fact that an

employer has the right to discharge an employee under Ohio law does not determine whether the

employee is entitled to receive unemployment compensation benefits under the Unemployment

Compensation Statute, RC Chapter 4141, et seq. Youghiogheny and Ohio Coal Co. v. Oszust, 23

Ohio St.3d 39 (1986).

The employer is not free to define what constitutes "just cause for discharge" under R.C.

§4141.29(D) (2) (a). An employee may be entitled to unemployment benefits despite the fact

that the employer may not be liable for wrongful discharge. Corbin v. Ohio Bureau of

Employment Services (1991), 77 Ohio App.3d 626, 632 (Franklin Cty.); Booth v. Administrator,

Ohio Bureau of Employment Services, 1999 WL 476092 at *3 (Court of Appeals Mahoning

County June 30, 1999), Motion to Certify Conflict Denied Aug. 31, 1999, declined jurisdiction,

87 Ohio St.3d 1432 (1999); Durgan v. Ohio Bureau of Employment Services, 110 Ohio App.3d

545, 549 (Lorain County 1996). So Amicus ODJFS' argument that it does not matter for

purposes of unemployment compensation whether the employer's reasons for discharge are legal

(because the claimant may have a different remedy against the employer) is simply wrong.

Appellant and Amici ODJFS Misstate the Aanlication of The Tzangas Case

Appellant and Amici ODJFS misstate the law that should be applied to determine

whether this claimant should receive unemployment benefits. These parties argue that the test

from Tzangas which is used to evaluate discharges due to unsatisfactory work performance

applies to the situation of this claimant who failed to pass a test where there is no evidence of

improper work performance and they further infer that that the Tzangas test applies to all

discharge cases. [Appellant's Brief at 5-8; ODJFS' Brief at 1-2, 6-8]. This position is of

concern because analysis of whether such a claimant was discharged for just cause pursuant to

R.C. § 4141.29(D)(2)(a) requires use of the Tzangas general fault analysis instead of the more

specific four prong "Tzangas" test which was designed to evaluate improper work performance.

Examination of the Tzangas case, the policy and procedures used by the unemployment agency,

and relevant case law show that the arguments of Appellant and ODJFS are without merit.

Ap ellant's And ODJFS's Application of Tzangas Is Contrarv To Langua2e In The

Oninion Itself

The critical issue in determining whether an employee is discharged for just cause

pursuant to R.C. §4141.29(D)(2)(a) is whether the employee's conduct demonstrates sufficient

fault to deny the claimant the protection of unemployment benefits. This standard was

enunciated by this court in Tzangas, Plakas and Mannos v. Administrator, Ohio Bureau of

Employment Servs. (1995), 73 Ohio St. 3d 694 ("fault on behalf of the employee is an essential

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component of a just cause determination") [Syllabus #2] and inIrvine v. Unemp. Comp. Bd. of

Review (1985), 19 Ohio St.3d 15. Moreover, Tzangas indicates that "fault can only be evaluated

upon consideration of the particular facts of each case" 73 Ohio St. 3d at 698, 653 N.E.2d at

1211. Thus, Tzangas set out a general fault standard to be applied in discharge cases which

requires analysis of fault in all discharge cases..

In addition to the discussing the necessity of evaluating fault in unemployment discharge

cases, Tzangas involved a specific type of discharge case, where a claimant was discharged for

unsatisfactory work performance ('unsuitable' for the work required by the employer). [Syllabus

Para. 3 and 4]. For that type of discharge, the court set forth a four prong test to be applied in

analyzing whether a claimant is at fault:

An employer may properly find an employee unsuitable for the required work,

and thus to be at fault, when: 1) the employee does not perform the requiredwork; 2) the employer made known its expectations of the employee at the time ofhiring; 3) the expectations were reasonable, and 4) the requirements of the job didnot change substantially since the date of the original hiring for that particular

position.

Tzangas,Syllabus 4, emphasis added. This language clearly shows that the four prong test is

intended only for this specific type of discharge case involving an employee "unsuitable for the

required work". Thus, if any of the four prongs of Tzangas do not apply, then only the general

fault standard/ analysis is applied.

In order to determine if a claimant is at fault, under either the general fault standard or the

specific four prong test, the Tzangas court requires that the facts of the case be examined. The

court explained this requirement:

Instead, Irvine 3 recognizes that the question of fault cannot be rigidly defined, but,rather, can only be evaluated upon consideration of the particular facts of eachcase. If an employer has been reasonable in finding fault on behalf of an

3 Irvine v. Unemp. Comp. Bd. of Review (1985) 19 Ohio St.3d 15.

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employee, then the employer may terminate the employee with just cause. Faulton behalf of the employee remains an essential component of a just cause

determination.

Tzangasat 698. Not only should the facts be evaluated in application of the general fault analysis

for all discharge cases, but the Tzangas court showed that the facts need to be evaluated in

applying the four prong test. Indeed, in Tzangas, the Court looked to the facts to determine if the

four prongs of the court's test were met. 73 Ohio St.3d at 699.

This requirement that the facts be examined to evaluate fault is critical, for the Appellants

argue for using a rigid application of the four prong Tzangas test, without an examination of the

relevant facts involved in Mary Williams' case. They argue that claimant was discharged for just

cause because she signed an agreement to obtain a LISW within 15 months making her position

conditional upon obtaining the LISW, she did not obtain the LISW, that such expectation was

reasonable, and that the requirement did not change since she was hired for that position.

[Appellant's Brief at 5-6; ODJFS Brief at 6-8]. Proper analysis under the Tzangas general fault

standard requires there be an examination of the facts of Ms. Williams' case to decide whether

she was at fault. Factors to be included would be whether she made a bona fide effort to take the

test in the time period permitted, why she was unable to pass the LISW test within the fifteen

month period, and whether the employer's requirement was bona fide, and other factors to

determine whether the employer's requirement was reasonable4.

In addition to violating the Tzangas court's explicit limitation of the four prong test to

unsuitability cases, the arguments of the Appellant Bridgeway and Amici ODJFS for this strict

' Indeed, while the Appellants have argued that it is inappropriate to consider the conduct ofothers in determining fault (Bridgeway at 6-8; ODJFS at 5-8, 10-12), the court in Tzangasexamined the conduct of other Tzangas firm employees and noted that another employee met thefirm's expectations and continued to be employed by the firm `demonstrating the reasonablenessof the job's requirements' 73 Ohio St. 3d at 699. Thus it is proper to inquire into therequirements that other employees are required to meet to determine if the rule is reasonable

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application of the Tzangas four prong test to Mary Williams case contradicts the unemployment

agency's own policy and the decisions of the courts of appeals that have applied Tzangas since it

was issued.

The ODJFS Office Of Unemnlovment Compensation Has Not Interpreted Tzaneas InThe Manner Suggested By Amicus ODJFS: Instead It Limits The Use Of The TzangasFour Prong Test To Cases Involvine Unsatisfactory Work Performance

The unemployment agency's own Unemployment Compensation Policy Guide, which is

used by unemployment claims examiners in evaluating unemployment cases, lists 29 types of

separation cases5. Unsatisfactory work performance is only one of those specific issues. The

Tzangas case and its' four prong factors are discussed and analyzed in the section titled

"unsatisfactory work performance". UCPG Part IV, Section 11 (C) (17). While Tzangas is

discussed with regard to the general fault standard (UCPG Part IV Section II, page 1), the four

prong standard is not discussed or applied in connection with any of the other 28 kinds of

discharge. UCPG Part IV, Section II (C).

The Policy Guide sections for the 28 other types of discharge situations other than

ùnsatisfactory work performance' each have their own discussion of the types of factors to

consider in assessing whether the discharge is with or without just case. For example, it is well

established that an employer can discharge an employee for absenteeism; however, where the

individual is absent due to a medical condition or due to a circumstance beyond the employee's

control, the discharge is without just cause6. Thus, the agency's Policy Guide states:

5 A copy of this section is attached hereto in the Appendix. This court recognized that theagency's own Policy Guide, then called the Non Monetary Policy Guide, is persuasive authority

inAsh v. Board ofReview, (1986), 26 Ohio St.3d 158, 161.

6 See, eg: Schultz v. Herman's Furniture (1976), 52 Ohio App. 2d 161 (6a' District); Sellers v.

Board of Review (1981) 1 Ohio App.3d 161, 440 N.E.2d 550 (claimant without fault anddischarge without just cause for legitimate and approved absences which resulted in a`negative

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Even though the claimant may have received prior warnings,served disciplinary suspensions for attendance, or been placed onprobation, a fmal absence/tardiness for a verifiable and compellingreason may not disqualify him/her from benefits.

Example: A worker has been through all of the employer'sdiscipline steps for her poor attendance and has been told that thenext absence will result in her discharge. On Sunday evening, theworker's father passes away in another state and the claimant hasleft the area. She is able to reach the employer on Mondayafternoon, several hours after the deadline for reporting anabsence. She is told not to bother returning to work, as she hasbeen discharged in accordance with the employer's policy. In thisinstance, claimant was unable to control the compelling personalcircumstances that caused her to miss work.

UCPG Part IV, Section II C (1). In contrast, rigid use of the Tzangas four prong factors

would result in a worker being disqualified even where the worker is absent due to illness or

compelling family circumstances. Under such application, it would be found that the employer

had a rule limiting the number of absences in a given period, the employee made the rule known,

the rule was reasonable, the employee was absent too many times and therefore the claimant

would be denied unemployment benefits. Such rigid use would not permit examination of

whether the claimant was without fault.

Similarly, the Policy Guide finds that where an individual is discharged for failing to

adhere to an employment practice that is unethical, the discharge is without just cause, UC

Policy Guide, Part IV, Section II, C.7 "Ethics; or if an individual is discharged for failing to

adhere to an employment practice that would cause a violation of the individual's religious

belief, the discharge is without just cause. UC Policy Guide, Part IV, Section II, C.8 "Religious

sick leave balance'); Booth v. Administrator, 1999 WL 476092 (Ohio App. 7 Dist.) (discharge

pursuant to a`last chance agreement' found to be a discharge without just cause where claimant

absent due to bona fide illness).

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Beliefs". Again, if the Tzangas four prong test were to be rigidly applied to such a situation, a

contradictory result would be reached, for it would be found that the employer had a rule, the

employee knew of the rule, the rule was reasonable on its face, and the employee did not follow

the rule, without regard to the legitimate reason for the unemployment claimant's actions.

Indeed, the Office of Unemployment Compensation's Policy Guide contains a three page

analysis providing further explanation of how to weigh the evidence in discharge cases,

especially where there is a violation of a company rule or policy. UC Policy Guide Part IV,

Section II, D. Included in this discussion is the requirement that the rule be reasonable, known

and uniformly applied. As discussed further below, this analysis is most applicable to the

situation in Ms. Williams' case.

Thus, the unemployment agency's own Policy Guide shows that it does not see the

Tzangas four prong test as applying to all discharge cases. Instead, the Policy Guide shows that

fault is to be considered in all discharge cases using the factors and analysis appropriate to the

particular discharge situation

Courts Of Apneals Have Generally Limited The Application Of Tzangas' Four PronQTest To Cases Involvine Suitabilitv/ Work Performance

In the 15 years since the Tzangas case was decided, it has been cited hundreds of times

for the standard of review of an appellate court. Recent electronic research identified very few

court of appeals decisions which addressed the application of the four prong Tzangas test to

discharge cases. As practitioners, we know that there are many Tzangas work performance cases

adjudicated by the Office of Unemployment and by the UCRC. These cases tend to be very fact

specific, which may explain why more such cases are not appealed to the courts of appeals.

Most of these court of appeals decisions were work performance cases'. These cases

properly applied the Tzangas four prong test. A few cases involved situations that involved both

suitability and other issues or where the court could not determine if the situation involved work

performance; so the court applied both the general fault standard and the specific four prong

standard, evaluating fault under both standards8. One case mentioned the four prong test but did

not apply it, finding that the claimant was without fault9. Two of the remaining cases involved

situations where the court found the four prong Tzangas standard inapplicable10. Only a handful

7 Doering v. Holmes County Dept. of Job & Fam. Services, 2009-Ohio-5719 (Holmes App.)

[social worker who repeatedly committed errors unsuitable]; Kiehl v. Univ. Hosps. Health Sys. -

Heather Hill, Inc., 2009-Ohio-5379 (Cuyahoga App.) [hospital employee unsuitable because she

did not perform required work]; Lyons v. Ohio Dept. ofJob & Fam. Servs., 2008-Ohio-3547

(Cuyahoga App.) [research analyst unsuitable where the evidence demonstrated that the position

is extremely challenging and was is difficult for the company worker's repeated errorsemployees];

andCarter v. Univ. of Toledo, 2008-Ohio-1958 (Lucas App.) [clerical

rudeness demonstrated she was unsuitable]; City of Dublin v. Clark, 2005-Ohio-5926 (Franklin

App.) [inspector unsuitable who could not meet workplace productivi^qnet ]; Robb Dir.,

Ohio Dept. of Job and Fam. Services, 2003-Ohio-6972 (Lake App.) [ employee was

terminated just 14 days after hire, the second and third prongs of the Tzangas test could not besatisfied as employee was not given time to meet reasonable expectations.]; Case W. Reserve U.

v. Adminstr. Ohio Bureau of Empl. Services (June 1, 2000), Cuyahoga App. No. 76318,

unreported [record demonstrated employee's inability to perform her duties].

g Warner v. Keystone Automotive Industries, 2009-Ohio-3396 (6^' Dist.); McCarthy v

Connectronics Corp, 2009-Oho-3392, 916 N.E.2d 871 (6th Dist); James v. Ohio State Unempl.

Rev. Comm., 2009-Oho-5120 (10a` Dist.).

9 In this case, issued shortly after Tzangas, the court seemed confused by the standard.Isidore v.

Big Boy East, Inc., (June 27, 1996), 7`t' Dist. No. 95-JE-19, 1996 WL 362716,misunderstandsTzangas; it applies the pre-Tzangas standard of review and then cites the four prongs of Tzangasbut doesn't seem to apply those four prongs. Instead, it discussed fault. Isidore is not a failureto perform case but it instead involves someone who was discharged for making an inappropriatecomment to a coworker and possibly for personal hygiene issues.

10 Sprowls v. Dept. ofJob and Family Services (2004) 156 Ohio App. 3d 513, 2004-Ohio-

1317 (2"d Dist.) (Tzangas' first prong not met; no failure to perform where individual dischargeddue to loss of insurability because of a decision made by the employer's insurance carrier for anaccident which was not claimant's fault)(discussed further in Appellee's Brief at 9-1T;

Laukert

v. Ohio Valley Hosp. Association. (1996) 115 Ohio App. 3d 168, 684 N.E.2d 1281 (7 Dist.)

-15-

of cases contain a detailed discussion of whether the four prong test applies to cases which do

not involve work performance. These cases are instructive.

One case which discussed whether the Tzangas standard applied to a termination for an

unauthorized leave of absence is of particular significance.Warner v. Keystone Automotive

Industries, Inc.,2009 WL 2004384, 2009-Ohio-3396 (6th Dist.). In that case the Appellant

DJFS contrarv to its nosition in this case, raised the following assignment of error:

Ordinarily the test for whether an individual's termination fromemployment is for just cause is whether there was a justifiablereason for the individual's doing or not doing a particular on-the-

job act. A separate, four-part test-the one used by the trialcourt here-is to be used only where the employee isterminated for deficient job performance. It is not to be usedwhere the employee is terminated for any other reason. Irvine

v. Unemployment Comp. Bd of Rev. (1985), 19 Ohio St.3d 15,

followed: Tzangas, Plakas & Mannos v. Ohio Bur. Of Emp.

Services (1995), 73 Ohio St.3d 694, paragraph four of the syllabus

explained)."

Para. 10 (emphasis added). The appellant's second assignment of error was that the UCRC

properly found that the claimant was discharged with just cause where she `knowingly violated

company policy by taking a prolonged absence from employment without obtaining prior

supervisory approval. (Para. 11). The Court ultimately concluded that the Appellant DJFS's two

assignments of error were well taken (Para. 20), thus finding that the four prong test did not

apply to such a case and that there was an intentional violation of company work rules

constituting clear fault under the general Tzangas fault standard"

(Tzangas not applicable where trainee not hired after failing part of a required competency test;

court held that the trainee could not be hired until she passed her test.).

" The court noted that the case could also be seen as a termination for poor work performance asher absence made it impossible for her to perform the required work (Para 19); however, the

-16-

A second case which discussed the Tzangas test in some detail was the case of McCarthy

v. Connectronics Corporation,183 Ohio App.3d 248, 916 N.F-2d 871, 2009-Ohio-3392 (6th

Dist.). The claimant was discharged for absenteeism, insubordination and deficient work

performance. The Court of Appeals reversed the Common Pleas decision which had applied

only the Tzangas standard, noting:

The Tzangas test is for determining unsuitability (i.e., the inabilityto perform one's job); this is not the only criteria that canconstitute just cause. Unsuitability for a position constitutes faultby the employee, as Tzangas made clear, but unsuitability is not

the only way of proving fault.

Id. at Para. 15, 183 Ohio App.3d at 253. This court decision contains an extensive discussion of

other types of discharge situations and the appropriate standards to be used in such situations

such as excessive absenteeism, refusal of a work assignment, insubordination and work rule

violations. Ultimately, the Court found the claimant to be at fault, finding "(t)he trial court

should have looked beyond Tzangas" . Id.

Finally, the case of James v. Ohio State Unemployment Review Commission, 2009 WL

3089168, 2009-Ohio-5120 (10th Dist.) involved a claimant who was discharged for failure to

obtain computer A+ certification. The court found that a claimant was discharged without just

cause under both the regular fault standard and under the four prong unsuitability standard. First,

the court noted that fault is an essential component of a just cause termination. The court also

held where the claimant was able to perform job duties without the certificate, "that the

requirement for A+ certification is unreasonable and is completely unconnected in any way to

performing the job of a CSR." 2009-Ohio-5120 (Franklin App.) at ¶20. Like the Cuyahoga

appellate court in our case, the Franklin County appellate court properly examined the duties of

court then discussed the facts which showed intentional violation of the company rule and foundthat the Appellant's two assignments of error were well-taken. (Para. 20).

-17-

the job to determine that where the record showed that the employee could perform the duties of

the job without the certification, the employee was discharged without just cause. The James

Court found that there was no evidence of failure to perform on the part of the claimant1Z.

Thus, under Tzangas, under agency policy, and under case law interpreting Tzangas, the

general fault standard/analysis rather than the four prong unsatisfactory work performance test

would have been properly applied to Ms. Williams' case. Under such analysis, she should be

found to have been without fault for her failure to pass the LISW exam and thus eligible for

unemployment benefits as further discussed in Appellee's Brief at 4-16. The Appellants'

argument that a rigid application of the four prong test should govern in this case is without

merit.

Where An Em lo ee Is Discharged In Violation Of A Work Rule, Established Case Law ProvideThat The Faimess Of The Work Rule Is Relevant To The Inouirv Of Whether The Discharge Is

For Just Cause

Both Appellant and Amicus ODJFS further argue that it was improper for the Eighth

District to consider whether Ms. Williams' discharge was due to unfair application of a work

rule. (Appellant's Brief at 6-8; Amicus brief at 5, 10-12). This contention is also contrary to

unemployment agency policy and well established case law discussed below.

The ODJFS Office Of Unemnlovment Comnensation Policv Guide Provides For ReviewOf Whether A Work Rule Is Known Reasonable And Uniformly Annhed.

Although the Amicus ODJFS contends that it is not proper to consider whether a rule is

fair or fairly applied when evaluating whether a discharge is for just cause, the Policy Guide

1z After the court concluded that there was no failure to perform, the court could have stoppedthere and found that the general fault standard applied. However, the James court, for good

measure also applied the other factors of the Tzangas four prong test, thus finding that the

claimant was not at fault under either the suitability standard or the general fault standard.

-18-

prepared by the Office of Unemployment, ODJFS and utilized by its claims examiners in

evaluating cases disproves this contention. The chapter on evaluating evidence in a discharge

case provides, in a general section on evaluating evidence in discharge cases, that where "an

individual has been discharged for violating a company rule, all of the following conditions must

be present for a disqualification to be imposed". (emphasis added) UC Policy Guide Part IV,

Section II, D., page 22. The policy then discusses four factors to be evaluated in a discharge

case:

1. The rule must be reasonable, known, and uniformly applied.2. The violation must have some connection with the work.3. The violation must be substantial and materially affect the employer's interest.4. Employee's action indicates negligence or a willful disregard of the rule.

UC Policy Guide Part IV, Section II, D, pages 22-24.

As to the first element, that the rule must be reasonable, known, and uniformly applied,

the Policy Guide explains the types of facts to be considered in determining `reasonableness'

such as: whether the rule is designed to protect or preserve the employer's best interest, whether

compliance with the rule is in any way impossible or beyond the control of the individual,

whether the rule imposes unreasonable burdens, whether the rule violates the law in any way.

A discharge due to a rule that is found to be unreasonable is a discharge without just cause. Id.

The Policy Guide also explains the ùniformly applied' portion of the first element:

For a rule to have significance, it must be uniformly enforced. ...when the claimant alleges that the rule for which he/she wasdischarged has not in the past been enforced, he/she will berequired to show that the employer had knowledge of the priorviolations and that he/she took no action. The statement of theclaimant would consist of names of other emnlovees involved,nature and time of the rule violation and how the employer knew

of the violation.

UCPG Part IV, Section II, D.l .c. (Emphasis added.) Thus, contrary to the Appellant and

ODJFS' assertion, the question of whether an employer treats his employees fairly is

relevant in evaluation of whether the claimant is eligible for unemployment benefits.

Finally the Policy Guide also explains the fourth element which states that the

employee's action must indicate negligence or a willful disregard of the rule. The Policy Guide

indicates that the claimant's actions must be examined to determine if they indicate a willful

disregard of the rules.

The claimant should be giveh the benefit of the doubt if the violation appears tohave been inadvertent and of a minor nature, or the claimant is not at fault and hasgood cause for his/her action. As an example, the claimant was discharged forviolating a company rule that required `reporting absence prior to the start of theemployee's shift.' This was a reasonable rule, but the facts show that the claimantas involved in an accident on his/her way to work, hospitalized and unable toreport absence as required. Under these extenuating circumstances, it would beheld that the discharge was without just cause within the meaning of the UC law.

UCPG Part IV, Section II, D.4, page 24.

Thus, pursuant to Ohio unemployment policy, inquiry is made as to factors consistent

with those used by the Court of Appeals in Ms. Williams' case. Contrary to the Amicus ODJFS'

assertion in its proposition of law, the unemployment agency does apply a standard which

considers uneven application of a work rule as relevant to whether a discharge is for just cause.

Indeed, the Policy Guide is consistent with the cases that Appellee discusses which apply the fair

and fairly applied standard. [See Appellee's Brief at 16-25.]

Ohio Cases Evaluate Work Rule Violation Cases Consistently With The Unemplovment

Comnensation Policy Guide

Review of Ohio cases involving work rule violations shows that the courts do not apply

the Tzangas four prong standard in evaluating just cause for discharge for work rule violation

-20-

cases; instead, the cases are consistent with the UC Policy Guide discussed above. Appellee has

already discussed the Shaffer v. American Sickle Cell Anemic Associatiom3 case in detail, as well

as other cases which apply the fair and fairly applied standard of Shaffer14. (Appellee's Brief at II

B).

In addition, other cases have looked to whether work rules are fair, evaluating factors

asuch as whether the rules are reasonable and known15 Indeed, in Talley v. COE Mfg. Co., 11

Dist. No. 2002-L-015, 2003-Ohio-1395, 2003 WL 1479807 the 11th looked to whether the rule

was reasonable and administered in a fair manner as well as whether there was an unreasonable

disregard for the employer's interest. Review of these Ohio cases involving work rule violations

shows that they do not apply the Tzangas four prong standard in evaluating just cause for

discharge and that they do instead consider whether work rules are fair, fairly applied or

demonstrate an unreasonable disregard for the employer's interest.

It is well established law in Ohio that unfair treatment is a basis for a determination that a

discharge was without just cause, as the appellate court concluded in this case. The Appellate

Court in Williams engaged in an accepted, appropriate, and established means of analysis for

determining an employee's right to receive unemployment benefits, finding that the discharge of

Ms. Williams for failure to pass a test was not fair and fairly applied., and as further argued in

Appellee's Brief at 16-24.

"(8a' Dist. June 12, 1986) 1986 WL 6711.14 Apex Paper Box Co. v. Administrator, Ohio Bur. Emp. Servs. (May 11, 2000), 8^ Dist. No.77423, 2000 WL 573174 (discussed in Appellee's Brief); McGinnis & Associates, Inc. v. Snack

(Dec. 31, 1996), 10th Dist. No. 96APE05-655 , 1996 WL 751539

15 See, e.g.: Sindel v. EBCO Mfg. Co. (1991), 71 Ohio App.3d 426, 594 N.E.2d 77(lack of notice of work rule); Snelling v. Board of Review (1991), 64 Ohio App.3d 261, 580

N.E.2d 1177 (lack of notice of work rule)

-21-

Summary

Amici therefore request that this Court reject the arguments of Appellant Bridgeway and

Amicus ODJFS. The Court should find that the proper standard to be applied in Ms. Williams

case, where she was discharged for failure to pass a test, was the general fault standard or

analysis under Tzangas Applying that standard's analysis of fault, this Court should fmd that

she was without fault and that she was properly allowed unemployment benefits. Furthermore,

this Court should fmd that the Eight District properly analyzed this case under the more specific

general work rule violation category when it which found that that the requirement that she be

required to pass the LISW exam was not fair and fairly applied to her situation. Thus, this Court

should find that Ms. Williams was entitled to unemployment benefits where she was discharged

without just cause pursuant to RC 4141.29(D)(2)(a).

Furthermore, the issue of whether an individual should be denied unemployment for

failing a test is a significant issue in the current economy. Unemployed workers who are

receiving unemployment benefits are required to actively seek new work. R.C. § 4141.29(A).

An unemployed worker can be denied benefits for refusing an offer of suitable work. R.C. §

4141.29(D)(2)(b). Many high wage manufacturing jobs have been lost in recent years. As a

result, unemployed workers often accept new employment in new fields which require passage

of tests and/or application for new licensure.

The policy asserted by the Appellants would penalize such an employee who attempts to

obtain a job in a new field and then finds that he/she is unable to pass a required test. The

Appellants would not only have that employee suffer by being discharged from the new

employer, but would also deprive that employee of the protection of the unemployment

compensation system if the employee is unable to pass a required test.

-22-

Ohio unemployment law should not penalize the employee who tries work in a new field.

Instead, unemployed workers need to be encouraged to seek possible work. If these workers are

then unable to pass a new employer's required test, despite their best effort, these unemployed

workers should still be protected by the unemployment compensation system and not be

automatically denied unemployment benefits by the improper standards proposed by the

Appellant and the Amici ODJFS.

CONCLUSION

For the foregoing reasons, and for the reasons set forth in the Brief of Appellee, Amici

urge this Honorable Court to affirm the Eight District Court of Appeal's decision finding that

Ms. Williams was discharged without just cause and is entitled to unemployment compensation

benefits.

Respectfully submitted,

Ariita L. Myerson #0022248Legal Aid Society of Cleveland1223 West Sixth StreetCleveland, OH 44113(216) 861-5607(216) 861-0704, faxAnita Myersonglasclev.orQ

And

Thomas W. Weeks #0028992Ohio State Legal Services Association555 Buttles AvenueColumbus, OH 43215-1137(614) [email protected]

Counsel for Amici CuriaeOhio State Legal ServicesLegal Aid Society of Cleveland

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Merit Brief of Amici Curiae was served byU.S. mail this I ',^_Iday of January, 2011, upon the following counsel:

Fred J. PompeaniRebecca A. KoppPorter Wright Morris & Arthur LLP925 Euclid Avenue, Suite 1700Cleveland, Ohio 44115Counsel for Appellant Bridgeway, Inc.

Alexandra T. SchimmerChief Deputy Solicitor GeneralLaura Eddleman HeimDeputy SolicitorLaurel Blum MazorowAssistant Attorney General30 East Broad St., 17th FloorColumbus, OH 43215Counsel for Appellant, Ohio Department of Job and Family Services

Gordon J. BeggsKenneth J. KowalskiJill Murphey, Legal InternEmployment Law ClinicCleveland-Marshall College of Law2121 Euclid Avenue, LB 138Cleveland, Ohio 44115-2214Counsel for Appellee, Mary H. Williams

Counsel for Amici OSLSA and LASC

Unemployment Compensation Policy GuideNONMONETARY ISSUES - Separation

Part IV, Section II DISCHARGE

TABLE OF CONTENTS

Page i

SUBJECT PAGE

A. Issue Description .....................................................................................................1

1. Previously Adjudicated Issue ...............................................................................1

2. Isolating The Nature Of The Separation . .............................................................2

3. Establishing Just Cause .......................................................................................3

B. Fact-Finding Requirements .. ..................................................................................4

1. Why Was The Claimant Discharged? ..................................................................4

2. What Was The Expected Behavior Associated With The Job? ............................5

3. What Were The Employer's Efforts To Prevent Or Control The Behavior?.......... 5

4. What Were The Worker's Efforts To Prevent Or Control The Behavior? ............. 6

C. Specific tssues ......................................................................................................... 7

1 Absence From Work And Tardiness ................................................................. 7

2 Relationship With Other Employees ................................................................. 7

3 Relationship With Competitors .......................................................................... 8

4 Relationship With Customers/Clients ................................................................8

5 Damage To Employer's Property, Equipment, Or Material ............................... 8

6 Morals ............ ................................................................................................... 8

7 Ethics ................................................................................................................ 8

8 Religious Beliefs ......................................... ,..................................................... 8

9 Gave Notice Of Quitting ................... ................................................................. 9

10 Lack Of Proper Equipment................................................................................ 9

11 Unable To Perform The Job Duties Due To Health/ Physical Condition ..:....... 9

12 Refused Work Assignment ..............................................................................10

13 Argument/Fight With Supervisor .....................................................................10

14 Exceeded Authority .........................................................................................11

15 Refused To Work Overtime .............................................................................11

16 Accident At Work ............................................................................................11

17 Unsatisfactory Work Performance ..................................................................11

18 Ne9lect Of Duty ........................ ........... ................... .....:........................... ....... 13

19 Union Relations ...............................................................................................13

20 Undisclosed Reason .......................................................................................15



Applicable Ohio Revised Code and Ohio Administrative Code

Discharge: SecSon 4141.29(D)(2), Ohio Revised.Code.

(D) Notwithstanding division (A) ofthis section, no individual may servepaid benefits under the following conditions:...

Page 1

a waiting period or be

(2) For the durafion of his unemployment'rfthe directorfinds that:

(a) Heouit his work without just cause or has been discharged forjust cause in connection with his work...

(e) He became unemployed by reasons of commipenal institution.

Applicable Court Cases

A. Issue Description. For a claimant to be entitled to benefits after a separation fromemployment, the reason for being unemployed must be through "no fault" of the

^' Fault' in the Federal unemployment insurance system relates toclaimant. ,circumstances within the control of the worker; "no fault" involves circumstances outsidethe control of the worker. However, the terms "faulP' and "no fault" are generalizedconcepts, as detailed in the previously cited Ohio Supreme Court decision (Tzangas,Plakas & Mannos v. OBES).

1. Previously Adiudicated Issue. The agency is prohibited from adjudicating an issuewhen the same issue has become final or is under appeal (Morrison v. Steinbacher).Examples of when this prohibition applies include: (1) whenever an initial claimapplication indicates a separation issue (within the 6X6 criteria) which occurred as aprior claim's additional or continued week separation, or (2) when an additional claim


Part IV, Section II DISCHARGE Page 3

In some situations, however, the "voluntary" nature of a separation is less clear. Forexample, is it voluntary or involuntary when the separation is by "mutual agreement"between the worker and the employer, or if the worker provides "quit in lieu ofdischarge" as the reason? What if the worker gives notice of intention to leave or resignat a future date, but is discharged by the employer on the date he/she gave noticebecause of the worker's intention to quit? A disagreement between the employer andthe claimant may arise about the reason for the separation (i.e., the claimant may sayhe/she was fired, while the employer says he/she quit).

Situations will arise in which it is difficult to determine whether the worker was"discharged" or "quit" work. Normally, a discharge suggests that the employer wasprimarily responsible for the termination of the employment. To prove this, it must beestablished that the employer: (1) acted to terminate the employment and (2) intendedthis result,

3 . Establishing Just Cause. All states disqualify a worker who has been discharged forjust cause in connection with the work. For a discharge to be for just cause inconnection with the work, it must be established that the individual's work performanceor conduct in connection with the work was such that an ordinary person would regardthe conduct a justifiable reason for discharging an employee. The employer must domore than just allege that the discharge was forjust cause in connection with the work.Before a disqualification is imposed, all the relevant facts in the case must clearly showthat (1) there was just cause in connection with the work, (2) the claimant was actuallydischarged by the employer and (3) that the discharge was based on this just cause,and not on any other reason. All three of these elements must be present or claimantcannot be disqualified from benefits.

Conduct or performance that would constitute just cause for discharge includes (but isnot limited to):

(1) The individual disregards his/her duties to the employer signifying anintentional disregard of the employer's interests;

(2) The individual disregards or ignores established rules or any standards ofbehavior which the employer has a right to expect;

(3) The individual shows carelessness or negligence in the performance of thework to such a degree or recurrence as to demonstrate a disregard of theemployer's interests. Such conduct need not rise to the level of misconduct;however, there must be fault on the part of the employee; or

(4) The individual is not able to perform the required work (for reasons otherthan health/physical condition) and all of the specific conditions detailed inSection C, paragraph 17 are met.

The just cause provision of the law tolerates a reasonable margin of error by workers. Itallows that, from time to time, an employee may be careless in the performance ofduties without meaning to harm the employer. When the worker's behavior is willful orreckless, however, and displays indifference to the employer's interests, fault is present.



q What are the employer's termination procedures? Were those proceduresfollowed? Was a union involved?

q Exactly when and how was the claimant discharged? By whom? Whatreasons were given? Was there a time lapse between the behavior and thedischarge? If so, why?

q Is there proof relating to the event (i.e., witnesses, signed statements,medical evidence, excessive sick leave, production figures, police report, otherbusiness records, etc.)?

2. What was the expected behavior associated with the iob? Here, the adjudicatormust discover what the claimant should have done. The expected behavior may beoutlined specifically in a verbal or written employer rule, union agreement, practices orconduct peculiar to a particular industry orjob, a law or regulation which governs healthor safety practices, or may be covered by commonly accepted standard employmentpractices.

Consideration may be given to the cumulative effect of the behavior (i.e., the "snowballeffecf' of repeating the behavior, or the "domino effect" of the behavior's influence onother employees). In addition, the claimant's behavior may be a direct act against theemployer or it may be an indirect act involving the public, customers, supervisors, orcolleagues.

q Were there rules or performance standards relating to the dispute which shouldhave guided the claimant's behavior? Were there any:

• written or verbal agreements?• company-union agreements?• job practices/performance standards customary for job/industry?• violations of government standards (e.g., health & safety)?

q Were these rules or performance standards made known to the claimant prior to

the incident? How? When?

q Did the behavior follow standard employment practices (i.e., conductexpected of employees without written rules such as sobriety, honesty, etc.)?

3 . What were the emplover's efforts to prevent or control the behavior? This factorfocuses on the efforts of the employer to control or prevent the behavior that resulted inthe discharge in order to establish both the reasonableness of the employer's actionand the claimant's knowledge of the consequence of his/her conduct. However, seriousviolations of employment (drunkenness, stealing from the employer, unprovokedinsubordination, etc.) need not be preceded by employer control, prevention, orwarnings in order to constitute just cause.


Part IV, Section II DISCHARGEPage 7

offered an opportunity to rebut adverse information. This rebuttal opportunity is alwaysan integral part of the fact-finding process.

C. Specific Issues.

I ABSENCE FROM WORK AND TARDINESSAttendance guidelines and policies established by the employer are necessary forsuccessful operation. Employees have a duty and obligation to the employer to observethese rules to the best of their ability. Absence or tardiness from work can constitutejust cause for discharge if non-compelling, unreported, or excessive.

Both the reason for the absence and the steps the individual tookto inform the employer must be considered. A single absenceseldom constitutes just cause. However, if an individualcontinues to have unexcused absences after the employer hasserved notice that further absences will not be tolerated, theunexcused absences may constitute just cause. Thedisqualification would apply when the employer furnishes specificinformation, such as dates, to establish that the claimant violatedthe employer's attendance policies.

Persistent tardiness, especially after being brought to the worker's attention and awarning given, usually constitutes an act of misconduct. In most cases, a final incidentwill cause the employer to terminate the worker. The adjudicator must determine thefacts and reason for the most recent incident. Even though the claimant may havereceived prior warnings, served disciplinary suspensions for attendance, or been placedon probation, a final absence/tardiness for a verifiable and compeiling reason may notdisqualify him/her from benefits.

2 RELATIONSHIP WITH OTHER EMPLOYEESThe disqualification would apply if it is established that claimant stirred up resentmentand/or dissatisfaction among other employees. Fact-finding must include the final eventthat caused the discharge and how the incident(s) created an adverse affect on theemployer's interests. A disqualification is also imposed when the worker is separatedbecause he/she used abusive or profane language in talking with fellow employees,engages in willful argument or fight with another employee on company aropertv,molests or annoys other employees, or refuses to co-operate with other workers.



evidence that the religious beliefs conform to any established teachings or tenets of areligious sect. The individual must present evidence that religious objection is basedon a personal and sincere belief.

If claimant had previously performed the assigned work, facts must also include thereason claimant now objects to the practice.

9 GAVE NOTICE OF QUITTINGIf a worker notifies the employer in advance that he/she intends to quit at a later dateand the individual is not permitted to work to the end of that notice, the determiningfactor of the separation is whether or not the individual was paid wages in lieu of notice.(In this situation, payment in lieu of notice is payment equal to the individual's regularpay through the end of the notice period. The employer cannot use accrued vacationpay as payment in lieu of notice.)If a claimant is paid wages in lieu of notice, the separation will be adjudicated as a quit,regardless of the last day worked. When a claimant files during the notice period, thedetermination must include both the separation and the deductible income issues.

When a claimant is not allowed to work out the specified notice period and is not paidwages in lieu of notice, no disqualification will be imposed unless the employerestablishes that the discharge was for good cause for reasons other than theemployee's intentions to quit.

10 LACK OF PROPER EQUIPMENTIf, as part of the contract of hire, the individual was required to furnish andmaintain all or part of the tools, equipment, licenses, permits, or certificationsrequired to perform the work and fails to do so, the discharge is for just cause.

An example of this situation includes a truck driver who is discharged because his/hercommercial driving license was revoked or suspended in accordance with state orfederal law. The discharge in this situation is considered to be for just cause. Adisqualification would also be imposed if the claimant failed to maintain his/her drivingrecord to the point that the employer's insurance company refused to provide coveragefor that worker.

Note: Certification may include GEDs, high schools diplomas, etc.

11 UNABLE TO PERFORM THE JOB DUTIES DUE TO HEALTH/ PHYSICALCONDITION

If the individual is discharged because he/she is no longer able to perform requiredduties because of a health or physical condition, no disqualification applies. Generally,a doctor's statement is required to establish proof that the claimant was no longer ableto perform the work to the employer's standards. If, however, the employer agrees thatthe claimant was no longer physically able to perform the duties required, a medicalstatement is not necessary.

Note: To be eligible for benefits, the claimant must establish that he/she is able,available and seeking other types of suitable employment.



14 EXCEEDED AUTHORITYThe disqualification applies if the worker is separated for exceeding his/her authorityand assuming responsibilities not authorized. If claimant had been allowed to exercisesuch authority in the past, the facts must include why the last incident resulted in thedischarge.

15 REFUSED TO WORK OVERTIMEThe disqualification applies if the worker is separated because he/she refused to workovertime when the facts establish that the overtime was mandatory, that all employeesaffected by the overtime policy were notified in advance of the policy, and that the policywas uniformly applied to all affected workers.

16 ACCIDENT AT WORKIf a worker is discharged due to an accident while performing his/her work, and suchaccident was attributable to his/her negligence or carelessness or willful disobedience toinstruction, or to a violation of an employer rule or safety regulation, or to a violation ofstatutory law, the disqualification shall be imposed.

If property, equipment or materials are damaged as a result of the worker's negligence,carelessness, disregard or failure to follow instructions, or to a violation of an employerrule or statutory law, the disqualification shall be imposed.

17 UNSATISFACTORY WORK PERFORMANCEIf a worker is discharged because of inability to meet performance standards of the job,a disqualification is imposed when ALL of the following conditions exist:

1. The individual did not perform the required work; AND

2. The individual was aware of the performance expectations of the positionat the time of hire for that position; AND

3. The expectations were reasonable; AND

4. The requirements of the job did not change between the date of hire forthat particular position and the individual's discharge.

Prior to applying this policy, the adjudicator must clearly establish and document thatthe claimants inability to meet performance requirements, standards, or quotas(subsequently referred to as "standards") was the reason for the discharge - not someother reason outlined in this section (e.g., because of a health/physical condition,violation of company policy, etc.).

The fact-finding requirements and adjudication considerations for each of the fourconditions (outlined on the prior page) are as follows:

1. The individual did not perform the required work. Obtain information anddocumentation which answers these questions:



. Do other employees (in the same position) meet those standards?

Certain occupations have customarily established performance minimums. Thesegenerally recognized or expected minimum requirements are normally consideredreasonable - unless the facts demonstrate that the parties agreed to a differentstandard. Another test of the reasonableness of the expectations is to determinewhether other employees in the same or similar position are able to meet the standardsof the employer.

When special or unusual standards are established for the position, the employer mustnotify the individual prior to enforcing those standards.

4. The requirements of the iob did not change between the date of hire for thatparticular position and the individual's discharae. Obtain information and documentationwhich answers these questions:

• Did the requirements for the job change subsequent to the hiring date for thatparticular position? Ifyes, specifics are needed.

• Was claimant subject to a probationary period (or other similar established timeframe)?

• On what dates did claimant receive warnings, if applicable?

A finding must be made as to whether the requirements of the job changed substantiallyfrom the conditions of hire for that position.

The employer may have extended the individual's employment beyond an establishedtime frame, such as the probationary period. If the employer did notwarn or alert the individual (after the established time period) that his/her performancewas deficient, it is considered that the employer accepted the individual's demonstratedabilities as the standard. Therefore, the individual is considered to not be at fault.

If the individual was unable to meet performance standards of the job and theadjudicator determines (based on the facts and his/her analysis) that the four elementsidentified above are met, the individual has been discharged with just cause and,therefore, is disqualified from receiving benefits. If anv of the four elements are not met,the individual was discharged without just cause.

18 NEGLECT OF DUTY-The disqualification will be imposed if the worker: (1) does not perform the duties of thejob when the failure to perform such duties is not attributable to the employer; (2)wastes the employer's time, annoys other employees, or sleeps while on duty; or (3)leaves before closing time or ceases working without authorization.

19 UNION RELATIONSA disqualification is imposed when a worker:



4. Is discharged for performing or participating in illegal activities during thelabor dispute, such as fighting with workers not in sympathy with the disputeor destroying the employer's property; or

5. Is discharged for violating a union rule that is covered in a collectivebargaining agreement.

The disqualification would not apply: (1) if the worker is discharged for participating inan authorized labor dispute, or (2) if the worker was engaging in union organizingactivities.

20 UNDISCLOSED REASONUse of this policy paragraph is limited to those few cases in which the employer (1) didnot give the claimant a reason for the discharge and (2) did not provide information toODJFS, and anlv after a reasonable attempt was made to obtain such reason.

21If an individual is discharged solel for refusing to take a polygraphor lie detector test (even though he/she may have agreed to such atest as a condition of employment, or there is a company rulerequiring employees to take such a test), he/she is not subject todisqualification. However, all factors in a given case must beconsidered as there may be other circumstances surrounding theseparation which would constitute just cause for discharge.

In cases involving police officers, the Supreme Court of Ohio in a case known asWarrensville Hts. vs. Jennings (1991), 58 Ohio St. 3d 206, held that a discharge forrefusing a polygraph test can be held to be for just cause. The decision held that apolice officer who refuses to take a polygraph examination and is discharged for thisrefusal can be considered to have been discharged for just cause within the meaning ofthe Ohio unemployment law if certain conditions are met. The court held the just causeprovision is met when a police officer refuses to obey a superior's reasonable order totake a polygraph test so long as the officer has been informed:

1. That the officer is the subject of the intended inquiry, which is specifically andnarrowly related to the performance of the officer's official duties;

2. That the officer's answers cannot be used against him/her in any subsequentcriminal prosecution; and

3. That the penalty for refusing the test is dismissal.

This court's decision applies onl to cases involving police officers. Before imposing aduration suspension, the claims examiner must clearly document that the request isreasonable and the three items specified by the court have been met.

22 GARNISHMENT OF WAGESFederal law prohibits any employer from discharging an employee becausehis/her wages have been subject to garnishment for a sinale debt, regardless of

REFUSAL TO TAKE A POLYGRAPH OR LIE DETECTOR TEST



24 DRUG TESTINGThis policy deals with discharges of employees who either refuse totake a drug test or do not pass a drug test. In order to apply this policyto either situation, the drug test must be required for one or both of thefollowing reasons:

1. Term or condition of employment ...• in accordance with statutory law;• under a collective bargaining agreement;• as required by written company policy;• by a specific agreement (e.g., "last chance" agreement)

Page 17

2, "Reasonable Suspicion" due to claimant exhibiting impaired performance orbehavior.

Refusal to take a drug test or failing a drug test for reasons other than those listedabove will result in a discharge withoutjust cause.

The employer must provide specific facts to establish an authorized and legitimatereason for requesting the drug test. These include: the reason for the drug test, a copyor citation of the applicable conditions of employment, visual signs of "reasonablesuspicion" (if applicable), and a copy of the drug test results if they are disputed by theworker.

To determine whether an individual was discharged for just cause for refusing to take adrug test or for failing a drug test, the specifics of each case must be examined todetermine if the test was required for one or both of the reasons listed above. Furtherexplanations of both of these reasons and the fact-finding required begins on the nextpage.

Druo Tests as Terms or Conditions of Employment. If it is established that the drug testwas required under any of the following conditions, then a discharge based on thefailure of or refusal to take such test may be considered just cause for discharge:

(1) In accordance with state or federal law as a condition of employment. Forexample, if an employee is required to maintain a commercial driver'slicense and be tested for controlled substances under provisions of federalmotor carrier safety regulations and it is established that the individualtested positive for the use of a controlled substance, then a discharge basedon such test results would be considered a discharge for just cause;

Under the terms/conditions of a collective bargaining agreement;

In accordance with a written company policy, the employee receivedreasonable notice of the policy prior to the test AND the employer has alegitimate business interest in having the drug testing policy. Legitimatebusiness interests may include, but are not restricted to, maintaining adrug-free and/or safe work environment; or



In each case, the following information must be requested to establish that the employerhad a legitimate business interest in requiring the drug test.

(1)

(2)

(3)

Reason for drug test;

A statement of the factual circumstances supporting the employer'sdetermination that there was "reasonable suspicion" that the employee wasunder the influence of drugs while performing services in connection withwork;

A statement from or on behalf of the employee of the factual circumstancesrebutting the employer's determination;

(4) A copy of the drug test if the employee disputes the positive test results;

(5) A statement from the employee as to why he/she refused to take the drugtest, if applicable.

Drug Test was Not Conducted as Part of the Terms or Conditions of Employment orBecause of a "Reasonable Susoicion." Information returned from the employer mayindicate that the drug test was not conducted as part of the terms or conditions ofemployment or because of a reasonable suspicion. When the fact-finding indicates thatthis is the situation, the adjudicator will issue a ruling holding that the employee wasdischarged without just cause in connection with work.

25 INTOXICATIONReporting to work in an intoxicated condition or being intoxicated while at work normallyis deemed an act of gross misconduct. Intoxication is a state in which alcohol or

another type of intoxicant has impaired an employee's mental or physicalfaculties, rendering him/her incapable of acting as an ordinary person, infull possession of his/her faculties and using reasonable care, would actin similar conditions.

Workplace intoxication is a violation of common rules of employment.Therefore, it need not be preceded by employer control, prevention, or warnings inorder to be misconduct. Substantiation that the worker was intoxicated is all that isnecessary to determine ineligibility.

The odor of alcohol on the claimant's breath alone is not sufficient to establishintoxication. The employer must fumish evidence that the claimant's bearing andactions indicated intoxication, such as the claimant's behavior that lead to suchsuspicions, events surrounding an accidenfthat occurred on employer's premises, etc.If the employer required the claimant to submit to alcohol testing, the test results shouldbe included in the documentation (or the reason(s) the claimant refused to submit to thetesting, if applicable). The absence of a test for alcohol in and of itself does not meanthe claimant would not be disqualified. All of the other evidence submitted which led theemployer to believe that the claimant might be impaired must be considered.



b. As a result of the sentence, he/she must have been committed.Confinement as a result of refusal or inability to pay a fine imposed by ajudicial officer is not considered commitment.

c. The claimant must have become unemployed as a result of thecommitment.

If any one of these three elements is missing, the separation is not adjudicated underthis issue. Most frequently, the separation will be adjudicated as a discharge due toabsenteeism as shown in the situations that follow.

If an individual became unemployed because of an arrest, and the arrest resulted in oneof the situations listed below, this section of the law will not apply because there hasbeen no commitment as the result of being found guilty.

a. Confinement pending posting of bond (prior to trial).

b. Suspended sentence.

c. Probationary sentences where no commitment is made.

When the individual wins his/her case and is not committed, but in the meantime haslost his/herjob for being absent from work, the issue will be adjudicated as a dischargefor absenteeism. If the individual has not advised his/her employer as to the reason forhis/her absence, it will be held that the discharge was with just cause.

If an individual loses his/her employment as the result of being arrested and he/she filesa claim for benefits while free on bail pending trial, the separation would also beadjudicated as a discharge for absenteeism.

28 SEPARATION FROM THE MILITARYIf an individual's last employment was as a member of the armed forces, the reason forseparation is considered lack of work, regardless of character of service. The fact thatan individual could have re-enlisted, but did not do so after completing the period ofactive military service, or that the individual voluntarily requested release or retirement,is not a basis for disqualification for "voluntary quit" or "refusal of suitable work," or forholding that he/she is not available for work.

However, if the claimant's period of military service does not constitute federal serviceunder the UC law, either due to length of service (i.e., less than 180 days) or characterof service (i.e., "dishonorable" or "other than honorable"), such service is disregarded indetermining the claimant's entitlement to Ohio benefits and cannot be used inconsidering the 6x6 requirements (as it is not considered covered employment). Whenthis is reported on an initial application, consider prior separations from employmentuntil the 6X6 requirements are met as instructed in UCPG Part VI, "IdentifVingSeparating Employers".

If the claimant is registering via the self-serve method after this type of militaryseparation on an already-allowed application, the individual will be asked if he/she



(4) Does it violate the law in any way, such as in regard to working hours orcondi6ons.

If the rule in question does not appear necessary to protect and preserve theemployer's best interest, and/or any of the conditions described in items b, c andd (above) exist, then the rule will be considered unreasonable and under the law,the discharge held to be without just cause,

b. Known. The facts must show that the rule had been issued generally to allemployees or made known to the claimant individually, either orally or in writing. Ifthe claimant had been issued a written copy of company rules (as in an employeehandbook), his/her failure to read the rules would not clear him/her of his/herresponsibility. If it is found that the claimant was never told or advised of theexistence of the company rule, any discharge for violation of the rule would generallybe held not for just cause.

Some rules do not need to be issued as they should be known and understood by allemployees. For example, there normaliy does not need to be a written rule againststealing an employer's property or drinking on the job,

c. Uniformly Applied. For a rule to have significance, it must be uniformly enforced.Employer rules which are broken with ho disciplinary action taken by the employerdo not constitute a just cause for discharge if the employer finally and withoutwaming decides to invoke the rule. When the claimant alleges that the rule forwhich he/she was discharged has not in the past been enforced, he/she will berequired to show that the employer had knowledge of the prior violations and thathe/she took no action. The statement of the claimant would consist of names ofother employees involved, nature and time of the rule violation, and how theemployer knew of the violation. The employer wili be requested to furnish evidenceas to whether the rule had been enforced and whether the claimant had beenwarned for previous violation.

A prior warning or reprimand is not necessary, however, when the violation is soserious that misconduct exists with the first incident. This stipulation includes, but isnot limited to, drunkenness, violation of statutory law, endangering others,destruction of property, etc.

2. The violation must have some connection with the work. The employer must showthat the violation of the rule in some way affected the employer's work or the employer'sbest interest. For example, an employee is discharged because of an existing companyrule which causes the discharge when an employee reports to work late three timeswithin a pay period. The violation of such rule definitely has job connection as theemployer's interest is adversely affected by loss of production and/or a change in theemployer's work schedule. An employer must set up a work schedule to satisfactorilyplan production and assign employees accordingly. When an employee fails to abidethe employer's schedule, the employer's interest is adversely affected.

Documents

oyi0l^q1 - Supreme Court of Ohio Assistance Foundation. OSLSA provides direct service to 30 southeastern Ohio counties through its Southeastern Ohio Legal Services program (SEOLS),