Ohio Revised Code 4113.52 protects employees who “blow the whistle” on employer misconduct. However, the procedure of whistleblowing is different depending on the circumstances surrounding the employer’s violation. If you believe a violation has occurred at your place of employment, the first step is to identify the category of situation, so that you are able to follow the proper procedure. The first category involves violations initiated by the employer. The second category encompasses specific types of employer violations concerning serious societal health and safety implications. Finally, the third category consists of violations instigated by a fellow employee within the course of employment.
The first situation occurs when an employee who, during the course of their employment, learns that their employer has violated a state or federal law, local ordinance, or regulation, which is a criminal offense that is likely to cause an immediate risk or physical harm or a hazard to public health or safety, a felony, or an improper solicitation for contribution.1
The first step for an employee who finds themselves in this situation is to orally alert their supervisor, or the responsible officer, of the violation.2 After the verbal notification, the employee must provide the supervisor, or responsible officer, with a written report that identifies and describes the violation.3 After receipt of the notification, the employer has twenty-four hours to correct, or make a reasonable and good faith effort to correct the violation.4 Next, within twenty-four hours of receiving the report, the employer must notify the employee, in writing, of all efforts the employer has made to correct the violation, or of the employer’s belief that no violation has occurred.5
If the employer fails to correct the violation within twenty-four hours, the next step is for the employee to submit a written report, identifying and describing the violation, to a police officer, prosecuting authority of the county, or any other appropriate public official or agency that has regulatory authority over the employer or industry.6
The second whistleblowing situation occurs when an employee who, during the course of their employment, learns of an employer violation regarding air pollution control (ORC § 3704), solid and hazardous wastes (ORC § 3734), safe drinking water (ORC § 6109), or water pollution control (ORC § 6111).7 If the employer’s breach embodies any of these violations, the employee need not alert the employer.8 Instead, the employee may directly notify any appropriate public official or agency that has regulatory authority over the employer.9
The third whistleblowing situation occurs when an employee who, during the course of their employment, becomes aware of a violation initiated by a fellow employee, of any state or federal law, local ordinance, regulation, or work rule or company policy, which is likely to cause imminent physical harm or a hazard to public health or safety, a felony, or an improper solicitation for a contribution.10 Similar to the first situation, the employee must orally notify his or her supervisor, or other officer, of the co-worker’s violation, and provide the supervisor, or other officer, with a written report that identifies and describes the violation.11
Regardless of the category of situations an employee finds themselves in, Ohio law protects the employee from disciplinary or retaliatory action taken against them as a result of taking action.12 Specifically, the employer cannot terminate or suspend the employee, withhold salary increases or benefits, transfer or reassign the employee, deny the employee a promotion, or reduce the employee’s pay or position.13
However, if the employer fails to adhere to the law, and takes retaliatory or disciplinary action against an employee as a result of the employee’s report of the violation, the employee can bring a civil action against the employer.14 The employee must bring suit within 180 days after the date the disciplinary or retaliatory action was taken by the employer.15 An employee bringing suit may be entitled to reinstatement of his or her position, payment of back wages, reinstatement of any fringe benefits and seniority rights, or any combination of these remedies as the court deems appropriate.16 The employee may also be awarded reasonable attorney fees associated with the action. 17
In addition to the protection and remedies provided pursuant to O.R.C. § 4113.52, the employee may also bring common-law claims, such as public policy or wrongful discharge, to collect additional damages if the remedies under the whistleblower statute are not adequate to fully compensate the aggrieved employee.18 Remedies afforded under the whistleblower statute may not fully compensate an employee in situations where reinstatement of employment is implausible due to hostility between the employee and the former employer.19 Where reinstatement is impractical, front pay is an alternative equitable remedy to compensate the employee. Further, under the common-law wrongful discharge doctrine, the employee can be awarded punitive damages they can establish that the employer acted with actual malice, and the court concludes that such damages would serve to deter the retaliatory conduct.20
It is important for employees to know their rights and the proper procedure for reporting employer violations. If you have learned of an employer violation during the course of your employment, and have been retaliated or disciplined as a result of reporting the violation, you may have a viable claim under Ohio law.
By Craig T. Matthews, Esq., a business, employment, and litigation lawyer from the Dayton and Cincinnati, OH area, with assistance from Mary Kraft.
1 O.R.C.§ 4113.52(A)(1)(a).
2 O.R.C.§ 4113.52(A)(1)(a).
5 O.R.C.§ 4113.52(A)(1)(b).
6 O.R.C.§ 4113.52(A)(1)(a)
7 O.R.C.§ 4113.52(A)(2).
8 O.R.C.§ 4113.52(A)(2).
9 O.R.C.§ 4113.52(A)(2).
10 O.R.C.§ 4113.52(A)(3).
11 O.R.C.§ 4113.52(A)(3).
12 O.R.C.§ 4113.52(B).
13 O.R.C.§ 4113.52(B).
14 O.R.C.§ 4113.52(D).
15 O.R.C.§ 4113.52(D).
16 O.R.C.§ 4113.52(E).
17 O.R.C.§ 4113.52(E).
18 Kulch v. Structural Fibers, 1997-Ohio-219, 78 Ohio St. 3d 134, 155.
19 Auvenshine v. Troy Sch. Dist., CIV.02-60223, 2006 WL 2070055, at *2 (E.D. Mich. July 26, 2006).
20 Limbacher v. Penn-Ohio Coal Co., 2002-Ohio-2870, ¶ 56 (5th Dist. 2002); Daniels v. Fraternal Order of Eagles Aerie of Tecumseh # 979, 2005-Ohio-3657, ¶ 22, 162 Ohio App. 3d 446, 453 (2nd Dist. 2005).