Author: Michael C. Jacobson, XpertHR Legal Editor
Decisions in Ohio, Pennsylvania and Tennessee illuminate problematic employment practices pertaining to terminations of employees who allege negligent supervision or improper training of employees, allege creation of an implied contract by terms of an employee handbook or "blow the whistle" on their employers.
Employers can use this material to shore up their termination practices as they pertain to employees whose activities create certain post-termination risks to the employer or otherwise educate and train supervisors to mitigate the risk of post-termination disputes.
- In Gargasz v. Nordson Corp., +587 N.E.2d 475 (Ohio Ct. App. 1991), an Ohio court clarified that provisions contained in an employee handbook, by themselves, are not typically sufficient to establish the existence of an implied contract. Rather, the state courts will look to the employer's practices, in addition to the content of its employee handbooks, when evaluating implied contract claims. In Gargasz, the employee could not offer any evidence of a contract other than the "mandatory disciplinary procedures" contained in the employee handbook. Without evidence that the employer actually followed that provision strictly and applied it equally to every employee, the procedures were merely considered discretionary.
- In McGovern v. Jack D's, +2004 U.S. Dist. LEXIS 1985 (E.D. Pa. 2004), a federal court applied Pennsylvania law to a claim of negligent supervision and improper training brought under the Pennsylvania Human Relations Act (PHRA). The employee alleged that after complaining of sexual harassment, the employer did not investigate and ultimately, a co-worker raped her. When the employee complained again, she was terminated. The court found that if claims for negligent supervision and improper training are truly claims for discrimination on the basis of sex, such claims should be brought under the PHRA, which outlines specific remedies.
- In Guy v. Mutual of Omaha Ins. Co., +79 S.W.3d 528 (Tenn. 2002), a Tennessee court applied the Tennessee Public Protection Act (TPPA), which prohibits employers from terminating employees solely for their refusal to participate in or remain silent about illegal activities, to a claim of whistleblower retaliation. The employee reported misappropriation of customer funds to the state insurance department, and was later terminated. The court found that the TPPA permitted a common law claim for retaliatory discharge and allowed the claim to proceed.