Unemployment Compensation Review Commission
Chapter Eight

Separations from Employment

A.  Generally

  1. Each eligible individual shall receive benefits as compensation for loss of remuneration due to involuntary total or partial unemployment in the amounts and subject to the conditions set forth in Ohio Revised Code Chapter 4141. {ORC §4141.29} One of these conditions is that the claimant's most recent separation must have been non-disqualifying. {ORC §4141.29(D)}
     
  2. An individual is totally unemployed in any week during which the individual performs no services and, with respect to such week, no remuneraton is payable to the individual. {ORC §4141.01(M)}
     
  3. An individual is partially unemployed in any week if, due to involuntary loss of work, the total remuneration payable to the individual for such week is less than the individual's weekly benefit amount. {ORC §4141.01(N)}
     
    1. Even if the individual remains employed on a part-time basis during the week, the individual is partially unemployed IF the individual's remuneration is less than the individual's weekly benefit amount.
       
    2. If the individual is not working all available hours, then additional issues of voluntary unemployment and ability to obtain suitable work are raised.
       
  4. In order to rule upon a separation, there must be an employer-employee relationship. In re Peer, R92-17373.
     
    1. Accordingly, the Director will NOT rule upon why an individual separated from self-employment as an independent contractor.
       
    2. However, the Director WILL rule upon the reason why an individual separated from non-covered employment.

B.  Lack of Work

  1. Under Ohio Revised Code Section 4141.29, an individual is entitled to benefits if the individual is separated from employment, either partially or totally, because the employer has a lack of work for that individual.
     
  2. When an individual and an employer have a contractual agreement that the individual's employment will end on a particular day, the separation which occurs at the expiration of that contract will be a separation due to a lack of work. Lexington Township Trustees v. Stewart , 1986 Ohio App. LEXIS 6202; Case Western Reserve Univ. v. UCRC, 2003 Ohio App. LEXIS 1932.
     
  3. Generally, once an individual has been separated from employment due to a lack of work, that individual cannot be separated for a different reason (such as a quit or a discharge) unless the individual first returns to work. Vineyard Wine Shoppe v. Weisert (1999), 133 Ohio App.3d 268; see also Distribution II Transmanagement Corp. v. Howell , 1988 Ohio App. LEXIS 5348. However, the result may be different if the layoff is only temporary in nature and there is a continuing employer-employee relationship. Batavia Nursing and Convalescent Inn v. Kidd, 1986 Ohio App. LEXIS 7290.
     
  4. Vacation Shutdowns. If a collective bargaining agreement gives the employer the right to declare a vacation shutdown, then the employees agreed to such vacation and the employees are voluntarily unemployed. However, if the agreement does NOT give the employer the right to declare a vacation shutdown, then the employees are involuntarily unemployed due to a lack of work. Budd Company v. Mercer (1984), 14 Ohio App.3d 269.

C.  Quit

  1. No individual may serve a waiting period or be paid benefits for the duration of the individual's unemployment IF the Director finds that the individual has quit work without just cause. {ORC §4141.29(D)(2)(a)}
     
  2. Generally
     
    1. The general rule for whether just cause exists under the Ohio Unemployment Compensation Law is set forth in Peyton v. Sun TV (1975), 44 Ohio App.2d 10:
       
      1. "There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its own particular merits."
         
      2. "Traditionally, just cause, in the statutory sense, is that which, to an ordinary intelligent person, is a justifiable reason for doing or not doing a particular act."
         
    2. Further, an individual is generally expected to pursue all other available options before deciding to quit employment. For example, in Peters v. Administrator (Jan. 18, 1994), Franklin CP No. 92 CVD-11-9221, unreported, the claimant quit employment because he was not paid overtime wages owed and because of an unsafe working condition. The court held that claimant quit without just cause because the claimant had not complained strongly about the unpaid overtime, had not complained to OSHA about the unsafe working condition, and therefore, had not pursued other available options before deciding to quit.
       
  3. Illness or injury
     
    1. Ohio courts have stated "An employee must advise their employer of a medical condition and allow the employer to adapt the employment accordingly before a medical condition can constitute `just cause' for quitting under R.C. 4141.29(D)(2)(a)." Reichart v. Administrator (Aug. 13, 1984), Montgomery CP No. 84-631, unreported; see also Goldman v. OBES, (Dec. 21, 1977), Hamilton App. No. C-76-718, unreported.
       
    2. An employee who quits due to illness or injury, but fails to ask the employer if positions are available which conform to the employee's medical condition, quits without just cause. Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15.
       
    3. An employee who is advised to quit by a doctor, but who continues working for a time before eventually quitting because of a medical condition, can still quit with just cause. Kulik v. Board of Review (1984), 14 Ohio App.3d 302 (holding that claimant's financial need to work for three months after being advised to quit by a doctor "is not a rebutting factor"); but see Jeffers v. Sandusky Metal Products, 1984 Ohio App. LEXIS 9254 (holding that a claimant who worked for three years after being advised to quit by a doctor quit for reasons other than a medical condition).
       
    4. In Jesse v. Steinbacher , 1986 Ohio App. LEXIS 7488, a claimant with attendance problems refused an offered leave of absence and instead quit her employment. After being treated for alcoholism, claimant concluded that she had quit her employment because of her alcoholism, and argued that she had quit her employment with just cause because she had acted as an ordinary reasonable person suffering from alcoholism would have acted. While the court agreed that alcoholism is a factor to be considered in determining whether there is just cause for quitting employment, the court held that the relevant question was simply whether an ordinary reasonable person would have quit her employment. The court held that claimant quit without just cause because she refused the employer's offered leave of absence.
       
  4. Quit in Anticipation of Inevitable Discharge
     
    1. An employee who resigns in anticipation of an inevitable discharge must be judged by the same criteria as if the discharge had actually taken place. Parks v. Health One , 1989 Ohio App. LEXIS 3118.
       
      1. In such cases, an employee had just cause to quit employment ONLY if the employer did NOT have just cause to discharge the employee.
         
      2. If the employer had just cause to discharge the employee, then the claimant quit without just cause.
         
    2. Parks requires that the discharge MUST be inevitable when the employee decides to quit.
       
      1. For example, the employer in Parks had already told the employee's attorney that the employee would be discharged at the end of her probation regardless of her work performance during that period.
         
      2. On the other hand, an employee who is simply put on probation, or an employee who is told that discharge will be recommended, does not yet face an inevitable discharge.
         
  5. Religious Beliefs
     
    1. In Frazee v. Illinois Department of Employment Security (1989), 489 U.S. 829, claimant was disqualified from receiving unemployment benefits because he refused to accept a temporary retail position involving Sunday employment. Claimant refused the employment because his belief as a Christian precluded him from working on Sundays. Claimant had been denied benefits by the lower courts because he was not a member of an established religious sect or church. The Supreme Court found that an individual need not be responding to the commands of a particular religious organization to claim the protection of the free exercise clause of the First Amendment.
       
    2. In Hobbie v. Unemployment Appeals Commission of Florida (1987), 480 U.S. 136, the claimant was employed as the assistant manager of a retail jewelry store. During the course of her employment, claimant became a member of the Seventh Day Adventist Church. She was discharged after she informed the employer that she would no longer be able to work from sundown Friday to sundown on Saturday.
       
      1. The U.S. Supreme Court found that claimant was entitled to benefits. It was ruled that a denial of benefits to claimant would violate the free exercise clause of the First Amendment. The court stated that any infringement on religious belief must be subjected to strict scrutiny and could be justified only by proof of a compelling state interest.
         
      2. Also see Thomas v. Review Bd. (1981), 450 U.S. 707, in which a Jehovah's Witness was found to have quit with cause after being transferred to a department that fabricated turrets for military tanks.
         
      3. In Fairbanks v. Board of Review (June 13, 1997), Hamilton CP No. 49606670, unreported, the court awarded unemployment benefits to an employee who quit work because he was required to attend church services which he found offensive as a Jehovah's witness.
         
    3. Courts have recognized "the possibility of charlatans unlawfully faking religious beliefs for their own nefarious purposes," and have stated that the determination of whether something is a sincerely held religious belief is a "difficult and delicate task." See e.g., Marvin v. Giles (1983), 11 Ohio App. 3d 57 (holding that a claimant quit with cause when he had a vision and was instructed by God to relocate to Alabama).
       
    4. In Trans World Airlines, Inc., v. Hardison (1977), 432 U.S. 63, it was held that an employer need not accommodate an employee's religious beliefs if it would violate the seniority system established in the collective bargaining agreement.
       
    5. In Employment Division v. Smith (1990), 494 U.S. 872, the Supreme Court departed from its previous decisions concerning the free exercise of religion. In this case, the claimant was denied unemployment benefits for the use of illegal drugs. Claimant was a member of the Native American Church and used peyote during a religious ceremony. The court did not reach the compelling state interest test, holding instead that the test did not apply to a challenge to a valid and neutral law of general applicability, even if it incidentally burdens a particular religious practice.
       
    6. In 1993, Congress attempted to reinstate the compelling governmental interest test, and overrule Smith, by passing the Religious Freedom Restoration Act. However, that act was declared unconstitutional in City of Boerne v. Flores (1997), 521 U.S. 507.
       
  6. Sexual Harassment
     
    1. Title VII of the federal Civil Rights Act of 1964 forbids discrimination on the basis of sex, including sexual harassment. Ohio has a similar law set forth in Ohio Revised Code Chapter 4112. The Ohio Supreme Court has determined that federal case law interpreting Title VII is generally applicable to cases involving Ohio's anti-discrimination statute. See Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169.
       
    2. There are two basic types of sexual harassment claims.
       
      1. A quid pro quo claim requires an employee to show that his or her response to a supervisor's sexual demands resulted in a tangible employment action against the employee by the supervisor.
         
      2. In a hostile work environment claim, the employee must show that he or she was subjected to sexual conduct that created an intimidating or offensive work environment.
         
      3. An individual can be sexually harassed by members of the opposite sex or the same sex. Same sex sexual discrimination, whether quid pro quo or hostile work environment, is actionable under Title VII and Chapter 4112. See Oncale v. Sundowner Offshore Service, Inc. (1999), 523 U.S. 75 (Title VII), and Hampel, cited above (Chapter 4112).
         
    3. In Meritor Savings Bank v. Vinson (1986), 477 U.S. 57, the United States Supreme Court held that employers may be liable under Title VII if their employees sexually harassed other employees.
       
      1. Employers are liable when a supervisor retaliates against a subordinate who rejects a sexual advance.
         
      2. There is also liability when the employer knows of a hostile work environment and fails to attempt to correct the problem.
         
      3. An employer may also be held liable for a hostile work environment created by a supervisor even if the employer has no knowledge of the matter. The employer can avoid liability by proving an affirmative defense that:
         
        1. the employer exercised reasonable care to prevent and properly correct any sexually harassing behavior; and
           
        2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
           
      4. If the employer establishes a policy that may be utilized by employees to complain about sexual harassment, the employees must first utilize the company's procedures before being justified in quitting. See Ellerth v. Burlington Industries (1998), 524 U.S. 742; Faragher v. City of Boca Raton (1998), 524 U.S. 775.
         
    4. In Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, the Supreme Court held that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. While psychological harm may be taken into account like any other relevant factor, no single factor is required.
       
  7. Breach of Contracts of Hire
     
    1. Reduction in Wages. A substantial reduction in pay can be just cause for quitting employment. See Vitale v. Administrator, 1986 Ohio App. LEXIS 8880.
       
    2. Reduction in Hours
       
      1. There is some case law stating that a dramatic reduction in work hours can provide just cause for quitting. Richards v. Giles, 1980 Ohio App. LEXIS 11606.
         
      2. Stapleton v. Director (2005), 163 Ohio App. 3d 14, holds that a reduction in work hours is certainly a key fact to be considered, but it may not be the only relevant fact in an unemployment compensation case.
         
    3. An employer's breach of the contract of hire constitutes just cause for an employee to quit employment IF the issue was of such significance that it was essential to the employee's continued employment. Tolan v. Board of Review (Sept. 1, 1983), Lake CP No. 82CIV1446, unreported (holding that an employee has just cause to quit employment if the employer fails to reinstate medical insurance required by the employment contract).
       
  8. Transportation. Unless there is a specific contractual agreement by the employer to provide transportation to work, the duty to secure adequate transportation lies entirely with the employee. Such failure to obtain adequate transportation to work does NOT provide an employee with just cause to quit employment. Mullins v. Board of Review 1985 Ohio App. LEXIS 9944.
     
  9. Quitting by Selling One's Business
     
    1. When an individual owns a business and is employed by that business, a separation can occur if that individual is no longer employed after selling the business to someone else.
       
    2. In such cases, the key question is whether or not the sale of the business was voluntary. If the sale of the business was voluntary, then the individual quit employment without just cause.
       
      1. In Neubauer v. Bec-Jon Corp. 1984 Ohio App. LEXIS 10525, the claimant was the sole owner of a corporation which operated a bowling alley. She owned all of the stock, served as president, and was employed by the corporation as the manager of the bowling alley. Although the business was unprofitable, it was not insolvent. Claimant sold the business to another concern. There was nothing in the purchase agreement providing that claimant would continue to work for the new owner, although she was willing to do so. Claimant was separated by the new owner when the business was transferred. It was held that claimant quit work without just cause.
         
      2. In Lawrence v. Ohio Credit Corp. (Oct. 5, 1978), Montgomery CP No. 78-1651, unreported, the court found that although claimant may have had personal reasons justifying the sale of his business, his actions were voluntary. The purpose of unemployment compensation is not to provide income to people who have ended their employment voluntarily.
         
  10. Buyouts
     
    1. An individual will NOT be disqualified for benefits if the employee accepted a separation from employment, because of a lack of work, pursuant to a labor-management contract or agreement, or pursuant to an established employer plan, program or policy. {ORC §4141.29(D)(2)(a)(ii)}
       
    2. Under this section, an employee, who accepts a separation under an employer's plan to reduce its number of employees due to a lack of work, is entitled to unemployment benefits even if the employee would not otherwise have been laid off. Ford Motor Co. v. OBES (1991), 59 Ohio St.3d 188.
       
  11. Military Service
     
    1. An individual will NOT be disqualified for benefits if the employee separated from employment for the purpose of entering the United States armed forces, IF the employee is inducted:
       
      1. within thirty days of the separation; or
         
      2. within 180 days after separation if the individual's time of induction is delayed solely at the discretion of the armed forces. {ORC 4141.29(D)(2)(a)(i)}
         
    2. An employee has just cause to quit employment where he returns from active duty and the employer will not reinstate him to his former position or a substantially similar position. Partridge v. Administrator (Feb. 22, 1999), Hamilton CP No. A-9803805, unreported.
       
  12. Rescinding One's Resignation
     
    1. Public employment. A public employee may rescind or withdraw a resignation at any time prior to its effective date, so long as the employer has not formally accepted the resignation. All that is needed to accept a resignation is that the public employer, or its agent, takes some action, preferably in writing, that clearly indicates to the employee that the resignation is accepted. Davis v. Marion Cty. Engineer (1991), 60 Ohio St.3d 53.
       
    2. Private employment. Unlike a public employee, who has constitutionally and statutorily protected employment, an at-will employee generally has no property interest in his or her continued employment. Accordingly, a private employer is not required to accept a private employee's attempt to rescind a resignation. Roberts v. Hayes, 2003 Ohio App. LEXIS 5248.
       
  13. Domestic Obligations
     
    1. No individual may serve a waiting period or be paid benefits for the duration of the individual's unemployment IF the Director finds that the individual has quit work to marry OR because of marital, parental, filial, or other domestic obligation. {ORC §4141.29(D)(2)(c)}
       
      1. A marital obligation would include an individual quitting work to move out of state with the individual's spouse. Farloo v. Champion Spark Plug Co. (1945), 145 Ohio St. 263.
         
      2. A domestic obligation could include an individual quitting work to care for a spouse, child, or parent. Pangallo v. Administrator (June 8, 1987), Clermont App. No. CA86-12-085, unreported. At least one state has recognized a domestic obligation between two unrelated people who live together in a long-term relationship. Reep v. Commissioner (Mass. 1992), 593 N.E.2d 1297.
         
    2. An individual who quits work to marry or because of a marital, parental, filial, or other domestic obligation is disqualified from receiving benefits until the individual becomes reemployed in covered employment and earns one-half of the individual's average weekly wage, or $60.00, whichever is less. {ORC §4141.29(G)}
       
      1. With an ordinary duration suspension, the individual is disqualified from receiving benefits until the individual works in six weeks of covered employment and earns $1,032.00 or more in that employment. {ORC §4141.29(G)}
         
      2. Reemployment in covered employment is satisfied so long as the employment is covered by the law of the state where the work occurs, even if that same work would not be covered employment under Ohio law. Fulton County Board of Education v. Giles (1978), 56 Ohio St.2d 433.
         
  14. Quitting to Accept Other Employment
     
    1. Quitting employment to accept other employment is a quit without just cause under Ohio Revised Code Section 4141.29(D)(2)(a).
       
      1. The rationale for this rule is that quitting employment to accept other employment is a voluntary act, whereas the purpose of Ohio's Unemployment Compensation law is to provide economic relief to individuals who become unemployed involuntarily. See, e.g., Cooper v. OBES 1979 Ohio App. LEXIS 9423. Courts have also pointed out that to hold otherwise would impose potential liability for payment of benefits upon innocent employers. McKinney v. Central Ohio Psychiatric Hospital (July 30, 1979), Franklin CP No. 79 CV-01-65, unreported.
         
      2. Leaving a temporary help agency to accept employment with the client is quitting employment to accept other employment.
         
      3. Quitting employment to accept a better job is a quit without just cause, even though the first job was intended to facilitate finding work elsewhere. Vinson v. AARP Foundation (1999), 134 Ohio App.3d 176.
         
    2. Removing the Suspension of Benefits
       
      1. Ordinarily, an individual who quits employment to accept other employment is disqualified from receiving benefits until the individual works in six weeks of covered employment and earns $1,158.00 or more in that employment. {ORC §4141.29(G)}
         
      2. However, the suspension of benefits will be removed IF: {ORC §4141.291(A)}
         
        1. the individual obtains such employment while still employed OR commences such employment within seven calendar days after the last day of employment with the prior employer;
           
          1. if this requirement is NOT met, even through no fault of the individual, the suspension of benefits will not be removed. See, e.g., Malone v. Board of Review , 1980 Ohio App. LEXIS 10793 (delay in start of employment caused by an "Act of God"); Hauser v. Decko Products , 1978 Ohio App. LEXIS 8726 (individual failed pre-employment physical).
             
          2. vacation or separation pay allocated to the end of employment extends the last day of employment with the prior employer. See, e.g., Young v. Tortilla Flats (1987), 37 Ohio App.3d 41.
             
        2. AND subsequent to the last day of employment with the prior employer, the individual works three weeks in the new employment and earns wages equal to one and one-half times the individual's average weekly wage or $180.00, whichever is less.
           
          1. An individual may use more than one employer in order to satisfy the requirement of working in three weeks. See Brunson v. Board of Review , 1981 Ohio App. LEXIS 14126.
             
          2. vacation or separation pay allocated to the end of employment extends the length of the subsequent employment. See Radcliffe v. Artromick International (1987), 31 Ohio St.3d 40.
             
      3. The suspension of benefits will also be removed IF the individual accepted a recall from a prior employer AND establishes that the refusal or failure to accept the recall would have resulted in a substantial loss of employment rights, benefits, or pension, under a labor-management agreement or company policy. {ORC §4141.291(A)(1)}
         
    3. Definite Layoff Date
       
      1. When an individual has been issued a definite layoff date, and before the layoff date, the individual quits to accept other employment, no disqualification is imposed. {ORC §4141.29(D)(2)(a)(iv)}
         
      2. However, if the individual fails to meet the requirements of Ohio Revised Code Section 4141.291(A)(2), then the individual shall be deemed able to obtain suitable work, and therefore ineligible for benefits under Ohio Revised Code Section 4141.29(A)(5), for each week of unemployment prior to the layoff date.
         
    4. Concurrent Employment. If an employee holds two jobs, a primary and a concurrent job, and the employee is separated from the concurrent job at the same time, OR within six weeks prior, as the employee is separated from the primary job, the employee will NOT be disqualified for benefits IF: {ORC §4141.29(D)(2)(a)(iii)}
       
      1. the remuneration, hours, or other conditions of the concurrent employment were substantially less favorable than the individual's primary employment; AND
         
      2. where the concurrent employment, if offered as new work, would be considered not suitable work under Ohio Revised Code Sections 4141.29(E) and (F).

D.  Discharge

  1. No individual may serve a waiting period or be paid benefits for the duration of the individual's unemployment IF the Director finds that the individual has been discharged for just cause in connection with work. {ORC §4141.29(D)(2)(a)}
     
  2. Generally
     
    1. In order to find that an employee was discharged for just cause in connection with work, there must have been some fault on the part of the employee. Tzangas, Plakas & Mannos v. Administrator (1995), 73 Ohio St.3d 694.
       
    2. "Just cause" means conduct which a person of ordinary intelligence would consider to be a justifiable reason for the discharge of an employee; there must be some fault on the part of the employee, although the conduct need not reach the level of misconduct. Angelkovski v. Buckeye Potato Chips Co., Inc. (1983), 11 Ohio App.3d 159.
       
    3. The critical issue is not whether the employee has violated a company rule. Rather, just cause for discharge exists when an employee's actions demonstrate an unreasonable disregard for an employer's best interests. Janovsky v. OBES (1996), 108 Ohio App. 3d 690; Kiikka v. OBES (1985), 21 Ohio App. 3d 168.
       
    4. In reaching a decision concerning "just cause," the Director is not bound by the terms of a claimant's collective bargaining agreement or employment contract. Wilson v. Matlack, Inc. (2000), 141 Ohio App.3d 95.
       
    5. Post-discharge evidence. In determining whether there is just cause for discharge, the Commission will examine only those facts which existed at the time of discharge, because those are the only facts which the employer was able to consider when the decision to discharge was made. For example, if an employee is discharged while under indictment, the facts known to the employer at the time of discharge may be considered, but the Commission will not consider any subsequent conviction. Akron City School District v. UCRC (Sept. 20, 2000), Summit CP No. CV00-06-2453, unreported (citing Bethesda Hospital v. Fowler, 1978 Ohio App. LEXIS 8732.
       
  3. Progressive discipline
     
    1. Generally, when the employer has an established, progressive discipline policy, the employer must follow that policy for an employee's discharge to be found to have been for just cause in connection with work. Eagle-Pitcher Industries Inc. v. OBES (1989), 65 Ohio App. 3d 548. Another court explained the rationale: "Progressive disciplinary systems create expectations on which employees rely. Fairness requires an employee not be subject to more severe discipline than that provided for by company policy." Peterson v. ODJFS, 2004 Ohio App. LEXIS 1765 (citing Mullen v. OBES, 1986 Ohio App. LEXIS 5278).
       
    2. However, if an employee's misconduct is unusually serious, an employer may have just cause to discharge the employee even if discharge is not provided for in the employer's progressive discipline policy. Sambunjak v. Board of Review (1984), 14 Ohio App.3d 432 (holding that an employee was discharged for just cause in connection with work when the employee, and a co-worker, took two days off work to go deer hunting after being given only one day of vacation. Although the employer's progressive discipline policy provided for only a one-week suspension, the court held that the situation was unusually serious because of the two employees acting in concert).
       
  4. Attendance
     
    1. Absenteeism caused by bona fide illness, reported to an employer, is NOT just cause for discharge. Schultz v. Herman's Furniture, Inc. (1976), 52 Ohio App.2d 161.
       
      1. The trend is toward employers establishing "no fault" attendance policies, which make no distinction between excused and unexcused absences. The case law is in conflict as to whether the claimant has the burden of proving that the absences were caused by illness under a no fault policy.
         
        1. Durgan v. OBES (1996), 110 Ohio App.3d 545, held that the burden was on the employee to prove that her absences were due to a bona fide illness under a no fault policy.
           
        2. Cobbledick Buick, Inc. v. Board of Review (Apr. 19, 1984), Cuyahoga App. No. 47430, unreported, held that if the employer does not challenge the legitimacy of an employee's illness, the employee is not required to provide medical evidence about the illness.
           
      2. Absence due to illness can be combined with absences for other reasons to support a discharge for just cause in connection with work. For example, a court held that where only nineteen of twenty-seven attendance points were due to illness, the employee was discharged for just cause in connection with work. Mohawk Tools v. Administrator (Mar. 14, 1986), Williams CP No. 24619, unreported.
         
    2. The courts generally require that an employer must notify its employees about its attendance policy, and require that the attendance policy is rational, understandable, and fairly applied to all employees. Kolimackouski v. Administrator, 1989 Ohio App. LEXIS 4596; Shaffer v. American Sickle Cell Anemia Assn. , 1986 Ohio App LEXIS 7116.
       
      1. Policies which combine attendance points with demerit points for poor work performance have been found to be unfair. See, e.g. Sugar Creek Packing Co. v. Tudor (Aug. 27, 1986), Montgomery CP No. 85-3731, unreported.
         
      2. In Lloyd v. Martin Brower Company (Apr. 28, 1994), Cuyahoga CP No. 159847, unreported, the employee's last attendance point was assessed when the employee called off only twenty minutes before work instead of giving the required one-hour notice. The court held that the employer's application of its attendance policy was hyper-technical, devoid of compassion, and unreasonable, and held that the employee was discharged without just cause in connection with work.
         
    3. Medical Leaves of Absence
       
      1. An employee who fails to return to work at the end of a medical leave can be discharged for just cause in connection with work. Pulay v. Case Western Reserve University (Dec. 6, 1984), Cuyahoga App. No. 48300, unreported.
         
      2. An employee can be required to submit medical documentation demonstrating a need to begin or continue a medical leave of absence. An employee who falsifies or refuses to provide such documentation can be discharged for just cause in connection with work. Adkins v. OBES, 1994 Ohio App. LEXIS 4123; Rummell v. Administrator (Oct. 1, 1984), Cuyahoga CP No. 62999, unreported.
         
  5. Unsuitability. In Tzangas, Plakas & Mannos v. Administrator (1995), 73 Ohio St.3d 694, the Ohio Supreme Court held that unsuitability for a position constitutes sufficient fault to support a discharge for just cause in connection with work IF:
     
    1. the employee does not perform the required work;
       
    2. the employer made known its expectations of the employee at the time of hiring;
       
    3. the expectations were reasonable; AND
       
    4. the requirements of the job did not change since the date of the original hiring for that particular position.
       
    5. The Commission applies Tzangas analysis to cases involving salespersons discharged for failing to meet sales goals. In re Adams, B00-00962. The Hearing Officer will decide whether the employer's sales quota was reasonable.
       
  6. Insubordination. An employee can be discharged for just cause in connection with work for willfully refusing to carry out the lawful instructions of a supervisor.
     
    1. The specific instructions given to an employee can supersede an employer's general disciplinary policy, providing just cause for discharge if the employee fails to carry out the specific instructions. Rose v. Hercules Tire & Rubber Co., 1990 Ohio App. LEXIS 345.
       
    2. In Fields v. Board of Review , 1987 Ohio App. LEXIS 8536, an employee at Ford Motor Company was repeatedly warned that company policy required that "foreign" cars must be parked in a specified area of the parking lot. The court held that there was a valid basis for the policy, which was negotiated through claimant's union, and that claimant's discharge for continuing to fail to follow this parking rule was a discharge for just cause in connection with work.
       
  7. Profanity. The mere fact that an employee uses profanity does NOT support a discharge for just cause in connection with work. Lombardo v. Administrator (1997), 119 Ohio App.3d 217. The courts generally consider four factors when determining whether the employee's use of profanity supports a discharge for just cause in connection with work:
     
    1. the severity of the profanity used;
       
    2. the provocation for the profanity;
       
    3. whether the profanity was isolated or part of a pattern; AND
       
    4. whether other employees or customers were present.
       
    5. Applying Lombardo, one court held that there was no just cause for discharge when an employee responded profanely to an employer's use of profanity. Barnes v. ODJFS, 2003 Ohio App. LEXIS 1793.
       
  8. Discharge during a Notice of Resignation Period
     
    1. If the employee is discharged during a notice of resignation period, and the employer does NOT pay normal wages to the employee for the balance of that period, then the question will be whether there was just cause in connection with work to support the discharge. Bank One Cleveland v. Mason , 1990 Ohio App. LEXIS 190.
       
    2. If the employer DOES pay normal wages to the employee for the balance of the employee's notice period, then the question will be whether there was just cause for the employee's decision to quit employment. In re Hale, R89-09811.
       
  9. Alcohol
     
    1. Although alcoholism is considered to be a handicap under Ohio Revised Code Section 4112.01(A)(13), the adverse effects that alcohol has on an employee's job performance can permit an employer to discharge an employee for just cause. Harris v. OBES (1990), 51 Ohio St.3d 37.
       
    2. If an employer prohibits employees from possessing alcohol at work, a court has held that an employee can be discharged for just cause in connection with work for having an open wine bottle in her car in the employer's parking lot. Janovsky v. Administrator (Jan. 24, 1996),108 Ohio App. 3d 690.
       
    3. If an employer prohibits employees from being "under the influence of alcohol" at work, the question is whether the employee's blood alcohol level would prevent the employee from legally operating a motor vehicle under Ohio law or whether the employee has shown other signs of impairment. Village of Poland v. Deskin, 2000 Ohio App. LEXIS 4587.
       
    4. If an employee agrees, as a condition of a Last Chance Agreement, to stop drinking alcohol for one year, the employee can be discharged for just cause in connection with work for an off-duty DUI conviction during that year. Myler v. Administrator (Apr. 20, 1988), Jefferson CP No. 87-CIV-340, unreported.
       
  10. Illegal Drugs
     
    1. Drug-Free Workplace Policy
       
      1. The Review Commission has held that an employer's interests in maintaining a safe working environment and a drug-free workplace can support a random drug testing policy. In re Sandlin, B93-02109.
         
      2. Provided that such a drug-free workplace policy is in writing, and that advance notice is given to the employee, an employee who fails a random drug test can be discharged for just cause in connection with work, even if there is no evidence that the employee's work performance was impaired. In re Sandlin, B93-02109.
         
    2. Absent such a drug-free workplace policy, it must be established that there is a connection between the employee's drug use and employment.
       
      1. For example, a commercial truck driver who tests positive for marijuana can be discharged for just cause in connection with work because the US Department of Transportation forbids such individuals from operating a commercial vehicle. Shields v. Anderson Concrete Corp., 1993 Ohio App. LEXIS 3229.
         
      2. Similarly, where a public utility prohibits its employees from off-duty drug possession, an employee who violates this rule can be discharged for just cause in connection with work because of the employer's duty to the public. South Central Bell Telephone Co. v. Sumrace (La. 1982) 414 So.2d 876.
         
      3. An employee who was convicted of drug trafficking, and charged with conveying drugs in prison, was discharged for just cause in connection with work where there was adverse publicity to the employer and where the employer had a written policy which warned that employees would be discharged for off-duty drug trafficking. General Electric Co. v. Grayson (Sept. 29, 1986), Hamilton CP No. A84-02021, unreported.
         
    3. The Review Commission has held that hair testing is reliable for determining if an employee is using illegal drugs. In re Otto, B95-02542.
       
  11. Fighting
     
    1. An employee who is the aggressor in a fight at work can be discharged for just cause in connection with work. Seitz v. Administrator , 1985 Ohio App. LEXIS 6352.
       
      1. An employer must fairly and evenly punish employees for fighting.
         
      2. If it is unclear which employee was the aggressor, both employees in a fight can be discharged for just cause in connection with work. Schaef v. Cleveland Electric Illuminating Co., 1980 Ohio App. LEXIS 13728.
         
    2. An employee who fights solely in self-defense cannot be discharged for just cause in connection with work. Conwell v. Administrator (Oct. 4, 1984), Cuyahoga App. No. 47914, unreported.
       
      1. If an employee is provoked into a fight through mere words, no matter how vile or abusive, the employee cannot claim self-defense. Seitz v. Administrator , 1985 Ohio App. LEXIS 6352.
         
      2. If an employee is assaulted, reports the assault to the employer and returns to work, and then later engages the assailant in a fight, the employee can be discharged for just cause in connection at work. Ishteivi v. Mather Co. (June 16, 1980), Lucas CP No. 79-2492, unreported.
         
  12. Licensing and Insurability
     
    1. Generally. Where an employee is required to be licensed, or insurable under the employer's insurance carrier, as a condition of continued employment, and the employee loses the required license or becomes uninsurable, the employee can be discharged for just cause in connection with work. Mayes v. Board of Review (1986), 32 Ohio App.3d 68 (employee discharged for just cause in connection with work for becoming uninsurable); Samson v. Board of Review (May 16, 1996), Pike App. No. 95 CA554, unreported (employee discharged for just cause in connection with work for losing security clearance); Williams v. Security Armored Car Services, Inc. (June 14, 1984), Scioto CP No. CIV 84-65, unreported (employee discharged for just cause in connection with work for failing to obtain operator's certification within two years as required); Schroeder v. City of Fairborn (June 9, 1994), Montgomery CP No 94-133, unreported (employee discharged for just cause in connection with work for failing to obtain chauffeur's license as required); In re Noonan, B94-02018 (employee discharged for just cause in connection with work for failing to obtain stock broker's license within one year as required).
       
    2. Direct Care to Older Adults
       
      1. Ohio law requires that any applicant who is under final consideration for a non-volunteer position that involves providing direct care to an older adult must undergo a criminal records check.
         
        1. Agencies included are PASSPORT agencies, Home Health Agency, Hospice Care Program, Nursing home, residential care facilities, homes for the aging, the Ohio Veterans' home, county and district homes, skilled nursing facilities, nursing facilities, certain adult day-care programs, and Adult Care Facilities. {ORC §§ 173.41, 3701.881, 3712.09, 3721,121, 3722.151}
           
        2. Agencies may also choose to check applicants for positions not involving direct care to older adults.
           
        3. The Bureau of Criminal Identification and Investigation shall perform the required criminal records checks.
           
      2. An agency may conditionally hire an employee to provide direct care to an older adult prior to receiving the results of a criminal records check.
         
      3. The agency shall terminate the person's employment IF the results of the check are not received within sixty days OR if the person has been convicted or pled guilty to any of the prohibited offenses, UNLESS the agency chooses to employ the individual under personal character standards.
         
        1. The list of prohibited offenses is long. See, e.g., Ohio Revised Code Section 3721.121(C)(2)(a) for a copy of the entire list.
           
        2. Generally speaking, the prohibited offenses include homicides, assaults, patient abuse and neglect, kidnapping, abduction, extortion, coercion, sex crimes, robbery, burglary, various types of theft and financial crime, domestic violence, weapons charges, and drug charges.
           
      4. Termination of employment under these provisions constitutes just cause for discharge under Ohio Revised Code Section 4141.29(D)(2) IF the individual "makes any attempt to deceive the home or program about the individual's criminal record." {See, e.g., ORC §3721.121(C)(2)(b)}
         
    3. Exceptions
       
      1. UCFE. The Review Commission has held that an individual who loses his civilian military employment because the employee loses active military status through no fault of the employee is discharged without just cause in connection with work. In re Kiggins, B01-00551.
         
      2. In Morris v. Conrad (1993), 90 Ohio App.3d 295, an employee's driver license was suspended after the employee's brother had received a citation while using the employee's name without the employee's knowledge or consent. The court held that, while the employer could not allow the employee to continue driving, there was not just cause for discharge because the employee had not committed any misconduct.
         
      3. In Friedman v. Physicians and Surgeons Ambulance Service, 1982 Ohio App. LEXIS 12291, a twenty-year ambulance driver was required by a new law to be certified as an Emergency Medical Technician. The court held that the employee, who could not pass the certification examination in part because of a reading disability, was discharged without just cause in connection with work.
         
  13. Off-duty Misconduct. Misconduct in connection with work is NOT restricted to conduct occurring during formal work hours, but there must be a sufficient connection between the off-duty misconduct and the employment.
     
    1. Office parties and gatherings
       
      1. An employee was discharged for just cause in connection with work when, at an office party, the employee used rude and profane language towards other employees and their spouses, attempted to start fights, and spilled beer on other employees. Sheeran v. Ohio , 1984 Ohio App. LEXIS 10609.
         
      2. An employee was discharged for just cause in connection with work for misappropriating funds entrusted to the employee as treasurer of an employee bowling league. Haynesworth v. Board of Review , 1987 Ohio App. LEXIS 5603.
         
    2. Remaining at work while off-duty. An employee was discharged for just cause in connection with work for arguing with a co-worker at work while off-duty. Grandowiez v. OBES (Mar. 26, 1979), Lucas CP No. 78-1699, unreported.
       
    3. Off-duty harassment of employees. An employee was discharged for just cause in connection with work for being convicted of telephone harassment of the employer's manager. Watling v. The Kroger Co., 1994 Ohio App. LEXIS 4642.
       
    4. Public employees
       
      1. Police officers. As police officers are sworn to uphold the law, any violation of the law, even if committed while off-duty, is connected to the officer's employment. Roundtree v. Dayton (Aug. 20, 1984), Greene CP No. 84CV61, unreported; see also Yant v. Board of Review , 1981 Ohio App. LEXIS 12351 (a police aide was discharged for just cause in connection with work for being convicted of off-duty gross sexual imposition with a minor).
         
      2. A postal worker was discharged for just cause in connection with work for being convicted of off-duty felony drug trafficking. Hartley v. Board of Review, 1984 Ohio App. LEXIS 10161.
         
      3. In USPS v. Ohio, 1981 Ohio App. LEXIS 4932, a postal worker was suspended after being convicted of leaving the scene of a fatal, off-duty, hit-and-run accident, and after being indicted for tampering with evidence. While there was a large amount of publicity surrounding these events, the court held that there was not misconduct in connection with work because there was not a sufficient connection between the off-duty misconduct and the employment.
         
      4. In City of Galion v. Administrator (Aug. 4, 1993), Crawford CP No. 93-CV-014, unreported, a city employee was discharged after being arrested for an off-duty bar fight, and then kicking out a police car window. While there was a large amount of publicity surrounding these events, the court held that there was not just cause for discharge because the employee's conduct had not impacted the other employees' morale, the city's reputation, or the other employees' ability to perform their jobs.
         
    5. Private bank tellers. A bank teller was discharged for just cause in connection with work for being late on loan payments, overdrawn on a credit card, and for bouncing checks. Nungesten v. Administrator (Aug. 7, 1984), Williams CP No. 24529, unreported.
       
  14. Competition with Employer. An employee who engages in competition with the employer has a conflict of interest with the employer, and the employee can be discharged for just cause in connection with work. Mossa v. Ohio Credit Union League , 1987 Ohio App. LEXIS 7460.
     
  15. Polygraphs. A police officer may be discharged for just cause under Ohio Revised Code Section 4141.29(D)(2)(a) when the officer refuses a supervisor's reasonable order to take a polygraph test, so long as the officer has been informed:
     
    1. the subject of the intended inquiry, which is specifically and narrowly related to the performance of the officer's official duties;
       
    2. the officer's answers cannot be used against the officer in any subsequent criminal prosecution; and
       
    3. the penalty for refusal is discharge. Warrensville Heights v. Jennings (1991), 58 Ohio St. 3d 206.
       
  16. Civil Service examination. If an employee is discharged because another individual passes a civil service examination for the employee's position:
     
    1. The discharge is without just cause in connection with work if the employee simply failed the examination.
       
    2. The discharge is with just cause in connection with work if the employee failed to take the examination, and lacked justification for failing to take the test.

E.  Correctional Institution

  1. No individual may serve a waiting period or be paid benefits for the duration of the individual's unemployment IF the Director finds that the individual became unemployed because of commitment to any correctional institution. {ORC §4141.29(D)(2)(e)}
     
  2. An employee can be discharged for just cause in connection with work for scheming to prevent the employer from learning that the employee was incarcerated. Lindsay v. Administrator (June 22, 1994), Summit App. No 16542, unreported.

F.  Dishonesty

  1. No individual may serve a waiting period or be paid benefits for the duration of the individual's unemployment IF the Director finds that the individual became unemployed because of dishonesty in connection with the individual's most recent or any base period work. {ORC §4141.29(D)(2)(f)}
     
    1. Dishonesty is defined as "the commission of substantive theft, fraud, or deceitful acts." {ORC §4141.29(D)(2)(f)}
       
    2. The Review Commission has defined "substantive theft" to be theft of any item, or a series of items, with a total value of $50.00 or more.
       
  2. IF the Director finds that the individual became unemployed because of dishonesty, the qualifying weeks and remuneration earned in such work shall be excluded from the individual's base period, and shall NOT be used to determine the individual's total benefits payable, the individual's weekly benefit amount, or employer charges. {ORC §4141.29(D)(2)(f)}
     
    1. An individual's application for determination of benefit rights will be disallowed IF, after excluding the qualifying weeks and remuneration earned from the employer with whom dishonesty was the reason for separation, an individual does not meet the requirements for a valid application.
       
    2. Penalties for dishonesty may also be imposed upon an individual who is given a disciplinary layoff for misconduct in connection with work. In re Bricker, B90-01882.
       

G.  Disciplinary Layoff

  1. No individual may serve a waiting period or be paid benefits for any week IF the Director finds that the individual has been given a disciplinary layoff for misconduct in connection with work. {ORC §4141.29(D)(1)(b)}
     
  2. Reinstatement. If an employer reinstates an individual who had been discharged at the time of filing the claim for benefits, the Review Commission will consider the time off to be a disciplinary layoff and will determine whether the layoff was for misconduct in connection with work.
     
  3. Generally, a disciplinary layoff of indefinite duration (or over sixty days), and under no definite terms or conditions, will be considered to be a discharge. In re Hendershot, B90-01019.

H.  Labor Dispute

  1. No individual may serve a waiting period or be paid benefits for any week IF the Director finds that the individual's unemployment was due to a labor dispute other than a lockout at any factory, establishment, or other premises located in this or any other state and owned and operated by the employer by which the individual is or was last employed. The disqualification for benefits lasts for as long as the unemployment is due to such labor dispute. {ORC §4141.29(D)(1)(a)} The administrative process for labor dispute hearings can be found in Ohio Revised Code Section 4141.283.
     
  2. Definitions and distinctions
     
    1. A "strike" is a cessation of work by employees in an effort to obtain more desirable terms with respect to wages, working conditions, etc., whereas a "labor dispute" is of broader scope and includes a controversy between the employer and the employees concerning wages, working conditions, or terms of employment. Leach v. Republic Steel Corp. (1964), 176 Ohio St. 221.
       
    2. A "lockout" is defined as a cessation of the furnishing of work to employees or withholding of work from them in an effort to get more desirable terms for the employer. Zanesville Rapid Transit, Inc., v. Bailey (1958), 168 Ohio St. 351.
       
    3. In Achey v. General Motors Corp., 1978 Ohio App. LEXIS 10682, employees who were laid off because they were engaged in sabotage and a concerted slowdown during contract negotiations were found to have been unemployed due to a labor dispute.
    4. Furnaro v. Board of Review (Dec. 6, 1978), Hamilton App. No. C-77603, unreported, ruled that it is of no consequence that a strike occurred before the local union had entered into a contract with the employer. The court found that there is no difference between a strike involving the terms of an initial contract or one involved in a dispute over the terms of a replacement contract.
       
  3. Distinction Between a Labor Dispute and a Lockout
     
    1. Status quo test
       
      1. The definitive case in Ohio distinguishing a labor dispute from a lockout is Bays v. Shenango Co. (1990), 53 Ohio St.3d 132. In this case, the union offered to extend the collective bargaining agreement for one year. The company refused and proposed extending the contract for 30 days. The company proposal did not include a cost of living adjustment that was to take effect on the day that the existing contract expired.
         
      2. In ruling against the company and finding a lockout, the Ohio Supreme Court adopted the status quo test which was developed by the Pennsylvania Supreme Court in Erie Forge and Steel Corp. v. Unemployment Comp. Board of Review ("Vrotney Unemployment Compensation Case") (1960), 163 A.2nd 91.
        This case stated, "neither an adamant attitude of `no contract, no work,' on the part of the employees, nor an ultimatum laid down by the employer that work would be available only on his (employer's) terms, are serious manifestations of a desire to continue the operation of the enterprise. While either or both of these positions may legitimately be taken by the parties during the bargaining negotiations prior to the expiration of the existing contract, when the contract has in fact expired and a new agreement has not yet been negotiated, the sole test under ***the Unemployment Compensation Law,*** of whether the work stoppage is the responsibility of the employer or the employees is reduced to the following: Have the employees offered to continue working for a reasonable time under the pre-existing terms and conditions of employment, so as to avert a work stoppage pending the final settlement of the contract negotiation; and has the employer agreed to permit work to continue for a reasonable time under the pre-existing terms and conditions of employment pending further negotiations? If the employer refuses to so extend the expiring contract and maintain the status quo, then the resulting work stoppage constitutes a "lockout" and the disqualification of unemployment compensation benefits in the case of a `stoppage of work because of a labor dispute' does not apply."
    2. In Bays, the court cited Zanesville Rapid Transit v. Bailey, (1958) 168 Ohio St. 351, and did not specifically overrule it.
       
      1. In Zanesville, the agreement between a public utility and the employees' union expired on November 30. For some time prior to the expiration of the agreement, the company had experienced difficulty in making a profit. The employer notified the union that it was uncertain as to whether it could continue operations after the contract expired. The union replied that the employees were willing to continue working under the prevailing terms until a new agreement was reached, or in the alternative, upon the giving of a five day notice to terminate the current agreement.
         
      2. At the time that the labor agreement expired, the employer notified the union that effective December 1, wages would be reduced 10 percent until January 15. It was stated that if the city council passed legislation that the employer requested and it was signed by the mayor prior to January 15, the employer would agree to restore the 10 percent reduction. The company proposal was rejected and the employees did not report for work on December 1, or thereafter.
         
      3. In ruling upon the employees' entitlement to unemployment compensation benefits, the Supreme Court of Ohio ruled that the 10 percent wage cut announced by the company as a condition of further employment was not an unreasonable one and did not manifest a purpose on the part of the company to coerce the employees into accepting it.
         
    3. A recent case, Minster Machine Company v. Albers, et. al., 2003 Ohio App. LEXIS 3861, stated that Bays provides an exception which allows an employer to deviate from the status quo for a compelling reason. In applying Zanesville, however, even if the employer has a compelling reason to deviate from the status quo, if that change is so drastic that it would be reasonably expected that the employee would quit rather than accept the change, then the employer 's deviation from the status quo constitutes a lockout.
       
      1. In Minster Machine, the union was willing to continue the terms and conditions of the collective bargaining agreement while negotiations continued, but the employer would not agree to continue the union dues check-off provision. The court found that the employer had a compelling reason to deviate from the status quo and that the union would reasonably have been expected to continue working without the check-off provision. Hence, unemployment was due to a labor dispute other than a lockout.
         
      2. It remains to be seen whether Minster Machine will be followed by other courts.
         
    4. Impasse
       
      1. Aliff v. Ohio Bureau of Employment Services, 2002 Ohio App. LEXIS 2506, ruled that the status quo test does not apply unless negotiations between the parties are ongoing at the time of the implementation of the employer's final offer. If there is an impasse, the Zanesville test applies. (See also, Johnson et al. v. Administrator (January 21, 1993), 82 Ohio App. 3d 293).
         
      2. A discretionary appeal of Aliff was denied by the Supreme Court in Aliff v. Ohio Bureau of Empl. Serv., 92 Ohio St. 3d 1433, and reconsideration was denied in Aliff v. Ohio Bureau of Emp. Serv., 92 Ohio St. 3d 1435.
         
    5. Reasonableness Doctrine
       
      1. The first Ohio court to specifically adopt the status quo test as set forth in Vrotney was Oriti v. Board of Review (1983), 7 Ohio App.3d 311. This case was cited with approval in the Bays case. In Oriti, the court held as follows:
        We therefore hold that where employees offered to continue working under the terms of a preexisting collective bargaining agreement pending final settlement of a labor dispute, failure of the employer to adopt such an offer constitutes a lockout unless it is demonstrated that the employer has a compelling reason for failing to so agree, such that the extension of the contract would be unreasonable under the circumstances.
        Voluminous case law has developed interpreting Oriti and determining whether it would have been reasonable to extend the contract under the circumstances. (See, for example, Johnson v. Administrator (1993), 82 Ohio App.3d 293).
      2. The applicability of Oriti's reasonableness doctrine was challenged in Alsip v. Klostermann Baking Company (1996), 113 Ohio App.3d 439. In Klostermann, the court stated that the appellate court in Oriti erroneously engrafted an economic unreasonableness exception onto the test. The court took exception to several long standing principles of law and stated that while the unreasonableness exception was discussed in Bays, the Supreme Court did not actually adopt it.

        The court ruled that in the application of the status quo test, the reason why an employer does not agree to an extension of the status quo is irrelevant.

         

        The court remanded the matter to the Review Commission for a proper application of the status quo test. A discretionary appeal was not allowed by the Supreme Court in Alsip v. Klosterman Baking Co., 77 Ohio St. 3d 155. Reconsideration was denied in Alsip v. Klosterman Baking Co., 78 Ohio St. 3d 1415.

         

        On remand, the Review Commission saw no need for a further hearing and reversed its prior holding, finding a lockout and awarding benefits. This decision was appealed and the Court of Common Pleas affirmed. The matter again went to the Court of Appeals and in Klosterman Baking Co. v. Ohio Bureau of Empl. Servs., 1999 Ohio App. LEXIS 1569, the court reversed on the ground that the record was not sufficient for the claimants to prove that the work stoppage was through no fault of their own.

         

        The case reached the Supreme Court a third time in Klosterman Baking Co., v. Ohio Bureau of Empl. Servs., 88 Ohio St. 3d 492. The majority's decision held as follows: The judgement of the Court of Appeals is reversed on the authority of Bays v. Shenango Co.

         

        In the absence of a definitive ruling, the issue is open for debate.

    6. Continuing to work under the employer's terms
       
      1. Johnson et al. v. Administrator, 1993 Ohio App. LEXIS 197, rejected the interpretation that employees accepted the terms of the company's implemented offer by continuing to work under the company's terms for fifty days. This did not create a "new status quo."
         
      2. Alsip v. Klosterman Baking Co., 113 Ohio App. 3d 439, also ruled that a company's unilaterally implemented final offer cannot create a new status quo.
         
    7. Futility doctrine
       
      1. A union need not offer to continue working under the status quo if the offer would be vain or useless because the employer would not accept the offer. Philco Corp v. Unemployment Comp Board of Review (Pa. 1968), 242 A.2d 454; Small Tube Products, Inc. v. Unemployment Compensation Board of Review (Pa. Super. 1962), 181 A.2d 854.
         
      2. This principle was cited with approval in Alsip v. Klosterman Baking Co., 113 Ohio App. 3d 439.
         
  4. Establishment Defined
     
    1. No individual shall be disqualified by reason of a labor dispute if the individual's employment was with such employer at any factory, establishment, or premises located in the state, owned or operated by such employer, other than the factory, establishment, or premises at which the labor dispute exists, if it is shown that the individual is not financing, participating in, or directly interested in such labor dispute. {ORC§4141.29(D)(1)(a)(i)}
       
    2. In Adamski v. Bureau of Unemployment Compensation (1959), 108 Ohio App. 198, the claimant worked for Champion Spark Plug Company in Toledo. The Toledo plant used ceramic insulators to make spark plugs. The insulators were manufactured at a plant in Michigan, which was owned by the same company. A strike at the Michigan plant cut off the supply of insulators to the Toledo plant. This resulted in a layoff at the Toledo plant. The court held that the claimants lost their unemployment by reason of a labor dispute at the establishment at which they were employed.
       
    3. The Adamski case is distinguished in Baumgarte v. Board of Review (1961), 90 Ohio Law Abs. 195. The court held that the rule of "geographic proximity" and "functional integrality" laid down in Adamski in defining the meaning of the word "establishment" called for a different result. In this case, the two plants involved were more than three times further apart. In addition, the plant involved had many other lines of production and could absorb and utilize the labor of the employees.
       
  5. "Directly interested" in the labor dispute
     
    1. An individual is not disqualified by reason of a labor dispute if it is shown that the individual is not financing, participating in, or directly interested in such labor dispute. {ORC Section 4141.29(D)(1)(a)(i)}
       
    2. It was held in Ford Motor Company v. Board of Review (June 17, 1980), Lorain CP No. 84212, unreported, that the burden is upon the claimants to show their non-participation in a strike. (This decision was subsequently overturned on jurisdictional grounds).
       
    3. In Aaron v. OBES (1998), 130 Ohio App.3d 376, the collective bargaining agreement between the United Auto Workers and General Motors provided for two forms of strikes against the company. The union could either call a strike of all locals or selectively call strikes of designated locals. The union was concerned because the employer was considering outsourcing the manufacturing of the anti-lock breaking system for automobiles. The union elected to selectively call a strike at the General Motors Delphi plant in Dayton, Ohio.

      General Motors had a functional integration system in place which provided for a "just in time" inventory system. For this reason, the strike at the Delphi plant forced many General Motors assembly plants throughout the nation to shut down, including the assembly plant in Lordstown, Ohio. The Lordstown plant and others could not obtain the necessary brake components and they had none inventoried to use until the strike ended. As a result, the lack of parts caused the unemployment of several employees who worked at locations other than the Delphi plant.

       

      The court ruled that the employees at locations other than Delphi were not "directly interested" in the labor dispute. It was stated that a claimant who is "directly interested" in a labor dispute is one whose rights are immediately and proximately connected with the dispute. Conversely, a claimant who reasonably expects that his or her rights may be "affected" by a labor dispute is not "directly interested" in that labor dispute, for the labor dispute may influence or change the claimant's rights indirectly. Thus, to be "directly interested" in a labor dispute, a claimant must have a stake in the labor dispute. The outcome of the labor dispute must proximately cause an alteration in the claimant's rights regarding wages, hours, or working conditions. A reasonable expectation that the dispute's outcome will "affect" these rights fail to adequately define a "direct interest" and renders the statutory exception a nullity.

    4. Aaron also held that the payment of regular union dues does not amount to financing a labor dispute.
       
  6. Employment with an employer not involved in the labor dispute
     
    1. An individual is not disqualified due to a labor dispute if such individual's employment was with an employer not involved in the labor dispute but whose place of business was located within the same premises as the employer engaged in the dispute, unless the employer is a wholly owned subsidiary of the employer engaged in the dispute, or unless the individual actively participates in or voluntarily stops work because of such dispute. {ORC Section 4141.29(D)(1)(a)(ii)}
       
    2. This section generally is applied to situations in which workers refuse to cross a picket line set up by other unions.
       
  7. Laid off prior to labor dispute
     
    1. No individual shall be disqualified by reason of a labor dispute if it is established that the claimant was laid off for an indefinite period and not recalled to work prior to the dispute or was separated by the employer prior to the dispute for reasons other than the labor dispute. {ORC Section 4141.29(D)(1)(a)(ii)}
       
    2. In Anderson v. Fisher Body Division (undated) Richland App. No. 1230, unreported, claimants had been laid off for re-tooling purposes. They were recalled to work for a brief period just prior to the expiration of the collective bargaining agreement. The court found that the employer acted in good faith in recalling the claimants and therefore, held that they were unemployed due to a labor dispute.
       
    3. Hopkins v. Giles (1982), 7 Ohio App.3d 79, provides that when an employee is laid off at the end of a work day because the employer anticipates a strike beginning the next day and the strike does take place as anticipated, the employee is not entitled to unemployment compensation because his unemployment was due to a labor dispute.
       
  8. Bona Fide employment
     
    1. No individual will be disqualified because of a labor dispute if such individual obtained a bona fide job with another employer while the dispute was still in progress. {ORC Section 4141.29(D)(1)(a)(ii)}
       
    2. Ohio Administrative Code 4141-28-10 specifies that the employment must meet the following conditions:
       
      1. must be covered by the Ohio Unemployment Compensation Law;
         
      2. obtained while the labor dispute was still in progress;
         
      3. must be at least four weeks duration;
         
      4. must have been entered into in good faith; and
         
      5. must not have been arranged with the object of obtaining unemployment benefits.
         
    3. Borden, Inc. v. Walls (1977 Ohio App. LEXIS 9270), held that bona fide employment means employment which is not used as a guise to circumvent the disqualification that would otherwise apply to unemployment due to a labor dispute.
       
  9. Innocent bystander
     
    1. When considering a labor dispute, an innocent bystander is not a member of the striking union, but becomes unemployed because no work is available as a result of the labor dispute at the establishment where he works.
       
    2. In Cornell v. Bailey (1955), 163 Ohio St. 50, the court held that the statute does not differentiate between those individuals who are actually on strike and those who are innocently unemployed because of the strike. The court noted that the legislature had an opportunity to provide a so-called "escape clause" for those who lose their unemployment by reason of a labor dispute without fault on their part, but the general assembly declined to do so.
       
    3. In Ohio Bureau of Employment Services v. Hodory (1977), 431 U.S. 471, the United States Supreme Court held that the Ohio statute disqualifying an "innocent bystander" from unemployment compensation benefits because his unemployment was due to a labor dispute other than a lockout was constitutional and had a rational relation to a legitimate State interest.
       
    4. The Supreme Court of Ohio revisited this issue in Abrendts v. Ohio Valley Hospital Association (1985), 17 Ohio St.3d 311. In this case, the court found that the non-striking claimants were entitled to unemployment compensation benefits although it did not specifically overrule Cornell.
       

      In Abrendts, the nurse's union gave the hospital at least ten days notice of its intent to strike on January 3, as required by federal law. The hospital informed all employees that it would close and reassign patients in anticipation of the strike plans announced by the nurses. By January 2, the hospital had reduced the patient census to zero. It locked its doors and changed all parking lot passes and codes to prohibit any employees from coming to work after January 3.

       

      The court held that claimants whose unemployment was directly and proximately caused by a lockout have the right to unemployment benefits because there can be no valid finding that such unemployment was due to a labor dispute other than a lockout within the meaning of the statute.

       
    1. Johnson v. Administrator (Jan. 14, 1987), Ashtabula CP No. 80845, unreported, involved another case where non-striking hospital employees were out of work because the hospital closed in anticipation of a strike. The court held that this created a lockout situation, citing Abrendts. The case was appealed to the Supreme Court on jurisdictional grounds and upheld.
       
    2. Hill v. Board of Review (1987), 39 Ohio App.3d 131 involves a case where two roofers unions were working on the same job. When one union went out on strike, the employer shut down the job. The court said that the non-striking union members were locked out and entitled to benefits, although it said that the Abrendts case did not apply to this situation.
       
  10. Start up time
     
    1. Leach v. Republic Steel Corp. (1964), 176 Ohio St. 221, provides that where a strike caused an employer to cease operations initially, the time required to reactivate the plant as a result of the shutdown is attributable to a labor dispute.
       
    2. The determination as to whether start up time is due to a labor dispute requires a case by case, situation by situation, employee by employee, department by department analysis. Abrey v. National Cash Register Co., Inc. (1974), 49 Ohio Misc. 19
       
    3. In Little Printing Co., v. Sarver (Nov. 10, 1976), Miami CP No. 76-178, it was held that a claimant was not entitled to benefits when he was not called back to work after the settlement of a labor dispute because of the employer's loss of business resulting from the strike.
       
  11. Hiring of replacement workers
     
    1. In Baugh v. United Telephone Co. (1978), 54 Ohio St.2d 419, it was held that when the employer terminates the employer-employee relationship by replacing a striking employee, the employer has thereby severed the labor dispute as the proximate cause of unemployment.
       
    2. Hi-State Beverage Co. v. Ohio Bureau of Employment Services (1991), 77 Ohio App.3d 633, distinguishes the Baugh case. This case holds that the labor dispute was not severed by the hiring of replacement workers when the employees had the right to return to work when openings occurred.
       
    3. Moriarity v. Elyria Methodist Home (Feb. 24, 1993), 86 Ohio App. 3d 502, also distinguishes the Baugh case. The court ruled that unlike the employees in Baugh, the claimants were not informed that they were permanently replaced and did not seek to return to work during the time period in question. It was found that claimants were still unemployed due to a labor dispute despite the employer's action in hiring replacements.
       
    4. In M. Conley Co. v. Anderson et al., (2006), 108 Ohio St.3d 252, the Ohio Supreme Court reaffirmed its holding in Baugh. The court stressed that when striking workers receive written notice that they have been permanently replaced, the employee relationship is severed and the disqualification for unemployment compensation benefits is removed.
       
  12. Transformation of a labor dispute or lockout
     
    1. On occasion, an event occurs which could alter the decision as to whether a labor dispute is a strike or a lockout. For example, a union may offer to return to work under the terms of the expired contract after a strike commences. This area has not been specifically ruled upon by Ohio courts.
       
    2. High v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review (1984), 479 A.2d 967. This case provides that each week of unemployment is the subject of a separate claim, the validity of which is determined by consideration of conditions existing within that week; consequently, a work stoppage which is initially a strike may subsequently be converted into a lockout.
       

      In Anderson v. Administrator, 1999 Ohio App. LEXIS 5368, the employer submitted its best and final offer on the last effective day of the collective bargaining agreement. This offer included a pay raise. The union rejected the offer but said the membership wanted to work the following day and wanted to meet with a mediator on the following day. The employer said if there was no contract, there would be no work.
       

       

      This was not relayed to the workers and they reported to work the next day. The gates were locked and they were turned away. At a meeting with the mediator that same day, the employer said that work was available under the terms of its best and final offer. The union refused to return to work. The Review Commission found that claimants had initially been locked out but the lockout was later converted into a strike.
       

       

      The court reversed the Commission, holding that the test of whether a work stoppage resulted from a strike or a lockout requires a determination of which side first refused to continue operations under the status quo.
       

       

      The court stated that it was unnecessary to reach the issue of whether a lockout may be converted into a labor dispute other than a lockout.
       

  13. Half-day strikes
     
    1. In Lilley v. Summit County Board of Mental Retardation and Developmental Disabilities (Mar. 5, 1992), Summit CP No. CV91082861, unreported, the union bus drivers notified the employer that they were going to engage in a partial work stoppage. They made themselves available for work each day at noon, indicating that they were ready, willing, and able to perform their assigned duties. The employer was willing to allow them to work on a full-time basis, but would not permit them to furnish services for only a half-day. The court held that this was a labor dispute other than a lockout.
       
    2. Agich v. Board of Review (1993 Ohio App. LEXIS 2929), held that teachers who engage in a "partial strike" are unemployed due to a labor dispute other than a lockout.
       
  14. Ending date of a labor dispute
     
    1. The Director of ODJFS may schedule a hearing when there is a dispute as to the duration or ending date of a labor dispute. {ORC Section 4141.281(A)}
       
    2. Carter v. Ohio Unemployment Comp. Board of Review (1995), 101 Ohio App.3d 527, ruled that the Review Commission does not have original jurisdiction to consider the ending date of a labor dispute if the question of the duration of a labor dispute was not ruled on by the Director.
       
  15. Refusal to negotiate
     
    1. In Arnold v. Magnetic Specialty, Inc. (June 16, 1998), Washington CP No. 97AA192, unreported, the employees voted to be represented by the United Steel Workers. The union was certified, but the employer refused to recognize the union. In March, 1996, the NLRB ordered the company to recognize and bargain with the union. The employer appealed this order.

      In March, 1997, while the appeal was still pending, the union went on strike. The company had asked that the union take no action until the resolution of the appeal or until a new election was held. The company was willing to pay the same wages and offer the same benefits.
       

    2. The court found the issue to be one of first impression in Ohio and held that this was a labor dispute other than a lockout.
       
  16. Picket line violence
     
    1. 632850BR, In re Giamarco. Claimant was not a union member and was scheduled to work. He refused to cross the picket line because he received veiled threats. The commission ruled that claimant must show: (1) he was willing to cross a peaceful picket line; (2) he made a reasonable attempt to cross the picket line; and (3) the sole reason for not crossing the picket line was a reasonable fear of bodily harm.
       
    2. In R92-12244, In re Patterson, citing Taylor v. Board of Review (1984), 20 Ohio App.3d 297, it was held that a reasonable fear for one's personal safety is a proper reason for leaving employment. An employee cannot be expected to remain on the job until an actual physical assault takes place.