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Can I Be Fired For Refusing To Do Illegal Acts?

On Behalf of | Jan 17, 2019 | Whistleblower Claims, Wrongful Termination |

Best Ohio Employment Attorneys Answer: Can I sue if I was fired by my boss for refusing to do illegal acts? Do I have a wrongful termination claim if my job wants me to do something unlawful, but I refuse? What is a public policy wrongful termination claim?

Johnny Depp has seen better time. Because this is an employment law blog, we don’t need to go into all of his recent transgressions … but we will go into some of the recent news regarding accusations against him.  Early this month, Depp settled an employment lawsuit brought by two of his former bodyguards, Eugene Arreola and Miguel Sanchez. The bodyguards had previously sued Depp for wrongful termination, hostile work environment and failing to pay overtime wages. One of the advantages of a settlement is that none of the details were disclosed and no one has to admit to any wrongdoing.

For the point of this blog, let’s use some of the allegations in the complaint as a jumping point to discussing employees’ rights in Ohio.  The lawsuit by the bodyguard employees alleged very generically that they were “asked repeatedly to drive vehicles that contained illegal substances, open containers and minors,” and were “forced to protect [Depp] from himself and his vices while in public, becoming caretakers for him.” Essentially, the employees claimed to have been fired for refusing to engage in unlawful or illegal activities.

Let’s start off by explaining why this creates a civil claim for damages. Employers cannot demand that their employees to engage in, participate in, or even tolerate acts that would violate state or federal laws. When the employees refuse to engage in such illegal activities, these employers cannot wrongfully fire these employees. In Ohio, firing an employee for refusing directives to engage in what the employee reasonably believes is illegal is an accept to the Employment at Will Doctrine, which provides that employers can fire an employee for any reason, no reason, or even a bad reasonexcept for reasons contrary to law. So, our employment attorneys first task is to always look for an exception. If the reason for termination is race/color, religion, gender/sex,national originage, ordisability discrimination, the exception is found as a matter of statutory law underTitle VII of the Civil Rights Act of 1964,Americans with Disabilities Act (“style=”font-weight: 400;”>ADA“), 400;”>Age Discrimination in Employment Act (“ADEA“), or in Ohio under Revised Code § 4112.01. Likewise, if an employee if fired fortaking medical leavestyle=”font-weight: 400;”> or in retaliation for filing a Worker’s Compensation claim, our employment law attorneys look to the Family and Medical Leave Act  (“FMLA“) or Ohio’s R.C. § 4123.90. These laws make this analysis much more direct.

But, what happens when there is no direct statute that says it is unlawful to fire an employee for engaging in a particular unlawful act. For example, turning back to the Depp allegations, there is no statute that says that it is unlawful to fire an employee for refusing to drive around in possession of illegal drugs or to assist in or turn a blind eye to the corruption of minors. There are just too many criminal laws to address each one individual in an employment context. So, under these circumstances, our employee’s attorneys will evaluate whether there is a public policy claim.

A cause of action for wrongful discharge in violation of public policy is recognized as an exception to the employment-at-will doctrine. See Greeley v. Miami Valley Maint. Contractors, Inc., 49 Ohio St.3d 228 (1990); Painter v. Graley, 70 Ohio St.3d 377, 382 (1994). To establish a cause of action for wrongful discharge in violation of public policy, an employee must be able to show:

(1) a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element);

(2) dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element);

(3) the plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element);

(4) the employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

The clarity and jeopardy elements are questions of law and policy to be determined by the court – which means that the judge makes this decision for the case is even tried to a jury.Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 151 (1997). The causation and justification elements are factual questions to be decided by a jury.Collins v. Rizkana, 73 Ohio St.3d 65, 70 (1995).

With these elements in mind, let’s circle back to our examples of transporting illegal drugs and corrupting minors:

(1) Obviously, there are clear public policies manifested in a state and federal statutes that make possessing and transporting unlawful drugs to be unlawful; and likewise, there are numerous law that make corrupting minors to be unlawful. As such, a judge should very likely hold that the clarity element was met. Our employment lawyers regularly deal with claims where employees were fired for refusing to be around illegal drugs on premises, particularly when the manager joins in smoking behind the building.

(2) Obviously, allowing an employer to keep firing employees who refused to assist in transporting drug and corrupting children until it found an employee willing to participate would jeopardize the public policy against drugs being used in our cities and protecting our kids.

With these two elements met, we should make it past the judge and get a chance to argue the case to the jury. When that happens, most employers become more willing to settle than facing the uncertainty that a jury brings. That is not always the case – so the best practice is to hire an employment law firm that has both the experience and resources to try the case to a jury.

Next, let’s skip to the fourth element:

(4) Under these fact, it would be hard for any employer to argue that they have some overriding legitimate business justification for needing employees that will transport drugs and help corrupt minors. Indeed, as an employee’s attorney, you hope that some dumb defendant employer and its attorney argue something as stupid as this so as to piss off the jury. As a trial attorney, one of the best feelings is when jurors openly scoff, laugh or shake their head in disbelief as an employer is testifying to something so absolutely absurd.

This means that in most wrongful termination cases for violation of a public policy based on the alleged refusal to engage in illegal activities usually comes down to the third element, the causation element:

(3) the plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element). We don’t have any information regarding this element for our Depp examples because Depp never responded. However, there are several defenses that come into play here.  The employer can argue that the employee is lying and there were no drugs nor minors involved, for example. The employer can argue that even if there were drugs or children involved, it fired the employees because they showed up late for work too many times, stole merchandise, or otherwise failed to perform their jobs. This issue will likely be the subject of several depositions and lots of document discovery.

It is important to remember that while the defendant employer may get the case dismissed on the first two elements, the best that the employee can do is get the case to the jury and convince them of the third and fourth elements.

So, the moral of the story is that should you find yourself facing termination or already being fired for refusing to engage in illegal or unlawful activities, your best option is to quickly get help from a qualified employment law firm.
Just in case you need a few more examples of unlawful activities that may give rise to a public policy wrongful termination claim, here is a list:

  • Unlicensed use of equipment or software
  • Performing procedures or tasks without proper licensing
  • Creating or promoting deceptive sales advertising
  • Fraud in purchasing and procurement of resources
  • Disposal of hazardous materials in violation of environment laws
  • Theft or abuse of company funds>
  • Committing perjury
  • Submitting false reports to government or overseeing agencies
  • Destroying documents
  • Defrauding customers
  • Hiring a hitman to kill a competitor (just checking to see if you were paying attention, but still applies)

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race,national origin, gender, age, religionor disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidentialconsultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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