Employee Fired for Complaining His Company Violated the Prevailing Wage Law Has Claim for Wrongful Discharge in Violation of Public Policy
Breaking new legal ground, Ohio’s Tenth District Court of Appeals recently held that an individual could sue his former employer for wrongful discharge after he was fired for complaining about the company’s failure to pay prevailing wages on a construction project.
Ohio’s prevailing wage law requires contractors and subcontractors on public improvements to pay their employees the proper prevailing wage rate.
The plaintiff worked as a supervisor for a contractor on a public improvement project subject to the prevailing wage laws. He received complaints from employees he supervised that they were not getting paid the prevailing wages. He relayed the complaints to his supervisors several times, but he and the co workers were still not paid the prevailing wages. He alleged he finally informed his supervisors that he would contact the Ohio Department of Commerce if the company did not properly pay the employees. He was subsequently fired by the company.
He sued the company for wrongful termination in violation of public policy, and asked the Court to award him lost wages, punitive damages, attorney fees, and costs.
Generally, most employment in Ohio is “at will,” meaning an employee can be fired without cause. An exception to this rule is when an employee is discharged or disciplined for a reason which is prohibited by a statute, such as anti-discrimination laws, or in violation of “public policy.”
To prevail on a claim of wrongful discharge in violation of public policy, the plaintiff must establish four elements. In this case, the element focused upon was whether the discharge of employees under circumstances like those involved in plaintiff’s discharge would jeopardize the public policy that the Ohio prevailing wage law was intended to protect.
Citing court decisions and specific sections of the prevailing wage law, the Court found the law expresses a clear public policy requiring the payment of prevailing wages sufficient to allow for a legal action for wrongful discharge in violation of public policy. According to the Court, the recognition of an action for wrongful discharge for complaining of prevailing wage violations will protect the clear public policy of requiring the payment of prevailing wages.
The preamble language of the legislation creating Ohio’s prevailing wage law in 1931 recognized that the law’s purpose was “to establish a fair rate of wages to be paid to workmen and mechanics employed in construction of public improvements.” The Ohio Supreme Court has stated that the legislative intent of the prevailing wage law is to “provide a comprehensive, uniform framework for, inter alia, worker rights and remedies vis-a-vis private contractors, sub contractors, and materialman engaged in the construction of public improvements.”
According to the Court, the General Assembly’s use of mandatory language in R.C. 4115.05 that workers “shall be paid the prevailing rate of wages” establishes the state of Ohio’s prevailing wage public policy of protecting the substantive right of employees. Ohio’s prevailing wage law expresses a clear public policy requiring the payment of the prevailing wage.
The Court of Appeals found, however, that the remedies set forth in the statutes for the prevailing wage violations by companies are not adequate to protect the substantive right of employees to be paid the prevailing wage. The Court said the statutory remedies do not provide employees, including discharged and former employees, with a meaningful opportunity to place themselves in the same position the employee would have had absent the employer’s violation of prevailing wage law, including reinstatement or backpay. Therefore, without the cause of action for wrongful discharge, the clear public policy of requiring payment of prevailing wage would not be protected.
Employers with prevailing wage projects need to be aware of these employee rights and not act against employees who raise concerns about prevailing wage issues.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.