• Reading Between the Lines - Analyzing the Voluntary Abandonment Doctrine after McKnabb v. Industrial Commission of Ohio
  • May 2, 2003 | Author: George B. Wilkinson
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • Employers take heed -- gone are the days of 10-page policy manuals; enter the era of policy libraries. Or so it seems after the Supreme Court's latest analysis of the voluntary abandonment doctrine in McKnabb v. Indus. Comm., (2001) 92 Ohio St.3d 559. In McKnabb, a car audio installer injured his back in the course of his employment. Although he returned to work after the injury, he was fired two years later for violating the employer's rule against excessive tardiness. However, at the time, the employer did not have a written employment or disciplinary policy concerning tardiness. The employer reasoned that the worker was not entitled to temporary total disability compensation (TTC) since he voluntarily abandoned his employment. In other words, the worker should not receive TTC, since his tardiness, rather than the industrial injury, prevented him from returning to work. The Supreme Court disagreed, and held that violating an unwritten work rule does not bar TTC. Unfortunately, this decision seems to raise more questions than it answers.

    Prior to McKnabb, the law concerning voluntary abandonment was relatively clear. Injured workers who "voluntarily abandoned" their former employment were not entitled to temporary total disability compensation. Under this doctrine, the Supreme Court has interpreted the term "voluntary" to include more than employee resignations. For instance, the Court has held that an incarcerated worker voluntarily abandons his employment when he cannot report to work due to his incarceration. The worker is said to have voluntarily abandoned his employment because, in the Court's view, people are presumed to "tacitly accept the consequences of [their] voluntary acts." Under the same analysis, an injured worker who is discharged for violating a known work rule or policy is considered to have voluntarily abandoned his employment so as to bar TTC.

    All terminations, however, do not constitute a "voluntary abandonment" of employment.

    In a 1995 decision, the Supreme Court held that a worker abandons his employment only when he is terminated for violating a written work rule or policy that:

    1. clearly defined the prohibited conduct,
    2. had been previously identified by the employer as a dischargeable offense, and
    3. was known or should have been known by the employee

    Louisiana-Pacific v. Indus. Comm., (1995) 72 Ohio St.3d 401, 403. While this standard seems clear, the Supreme Court used McKnabb v. Indus. Comm. to further clarify the voluntary abandonment doctrine. The Court emphasized that voluntary abandonment only applies when a worker is terminated for violating a written work rule or policy. In this decision, however, the Supreme Court does not explain what kind of writing is needed to support a voluntary abandonment finding. This oversight creates a problem for employers.

    Considering the unpredictability of human nature, accurately forecasting every form of inappropriate work-related conduct is difficult.

    In light of this limitation, many employers include "catchall" provisions in their policy manuals. For example, a policy manual could state, "an employee will be discharged for threatening others, excessive tardiness, or conduct detrimental to the business." How the Court interprets these catchall provisions post-McKnabb remains to be seen.

    Although the Supreme Court closely scrutinizes post-injury terminations "because of the potential for abuse," a narrow reading of McKnabb's writing requirement could generate absurd results. For instance, imagine a policy manual that contained a provision prohibiting "conduct detrimental to the business." Also assume that the manual did not specifically prohibit a worker from physically intimidating a co-worker. Is the catchall provision a sufficient writing to support a voluntary abandonment finding, or must the manual specifically prevent physical intimidation? Only time will tell. The Court, it seems, must strike a delicate balance between an injured worker's right to receive compensation and an employer's right to prevent inappropriate conduct. This balance will, in all likelihood, pit the law of retaliatory discharge against an employer's right to conduct business since, on one hand, the law clearly prohibits employers from discriminating against workers for seeking worker's compensation benefits. (R.C. 4123.90). On the other, physical intimidation is certainly detrimental to most employers. Yet, despite this uncertainty, employers can learn several lessons from the McKnabb decision.

    Lessons Learned

    Be Thorough

    Although predicting human behavior is virtually impossible, employers should try to include every conceivable, and possibly inconceivable, form of inappropriate conduct in their policy manuals. Of course, this approach may result in larger policy manuals. However, a detailed manual would include more specific types of terminable conduct, which would, in all likelihood, satisfy the voluntary abandonment writing requirement.

    Be Consistent

    While the Supreme Court insists that post-injury terminations must be supported by a writing, it is unlikely that the Court would find voluntary abandonment when an employer does not consistently enforce its written prohibitions. For example, a policy manual could state that missing three consecutive days without reporting to work established grounds for termination. Yet, if the employer fails to terminate any employee for violating this policy, the Court may find that the writing is merely an excuse for retaliating against the employee.

    Be Prepared

    Considering the Court's willingness to closely scrutinize post-injury terminations, employers must be prepared to support post-injury terminations with appropriate documentation. This documentation could include the extent of the injured worker's violations and the employer's history of managing the particular type of behavior.

    While predicting the Supreme Court's interpretation of the McKnabb writing requirement is difficult, these simple steps may ensure that employers, and their right to conduct business, are protected.