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Supreme Court of Ohio Watch

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Mary Jane Trapp of Thrasher, Dinsmore & Dolan, a Legal Professional Association,  will regularly spotlight the most recent Ohio Supreme Court decisions affecting our clients, their businesses and their families. Mary Jane is a former appellate judge who also sat on the Supreme Court of Ohio by assignment of the chief justice. She is a frequent radio and TV commentator explaining noteworthy Ohio and United States Supreme Court cases. Here is her first installment-

Whistleblower Protection Is Not One Size Fits All

Two recent decisions from Ohio’s high court illustrate the point that “whistleblower” protection depends on the law creating the protection, and the statutes are not all alike.

The first case dealt with the intersection and interpretation of two statutes. The first, R.C. 3721.22, sets outs the responsibilities for reporting suspected abuse and neglect of residents in a long-term care or residential care facility to the Ohio director of health and provides protection to the reporter from civil lawsuits and criminal charges. The second, R.C. 3721.24, protects the reporter from retaliation by the employer.

In a 6-1 decision, the court examined these two statutes and held that an employee or other person who works or provides services at these types of facilities does not have to actually make a report of or show the intent to report suspected abuse or neglect to the Ohio director of health to be able to bring a retaliation claim under the statute.

Justice French dissented. In her view the whistleblower statute, R.C. 3721.24, is ambiguously silent about who is to receive such reports, so the statute should be interpreted to require a report to the director of the department of health or else one could simply report it to a friend and then be entitled to protection.

The second case dealt with the whistleblower statute found at R.C. 4113.52.  Justice French, this time writing for the 5-2 majority, found that a village employee was not entitled to protection for reporting problems at a wastewater treatment plant because he did not strictly comply with the statutory reporting requirements. For example, she determined that while the employee reported “equipment failures,” that report did not qualify as a report that “sufficiently identifies any crimes involving the village.”

The take away from these two recent decisions is that employers and employees facing potential whistleblower issues should consult with counsel early on to test their particular set of facts against the correct law.

The full opinions may be found at

Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2014-Ohio-5511 https://www.sc.ohio.gov/ROD/docs/pdf/0/2014/2014-Ohio-5511.pdf

Lee v. Village of Cardington, 2014-Ohio 5458 http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-Ohio-5458.pdf

For more information or help with your case, please contact Mary Jane at mjtrapp@tddlaw.com or 216-255-5431.