Thomson v. Boss Excavating & Grading, Inc.

[Cite as Thomson v. Boss Excavating & Grading, Inc., 2021-Ohio-3743.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Trent Thomson, :
Plaintiff-Appellant, :
No. 20AP-263
v. : (C.P.C. No. 19CV-948)
Boss Excavating & Grading, Inc., : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 21, 2021
On brief: Stebelton Snider, LPA, Daniel J. Fruth, Abbey M.
Becca, and Charles M. Elsea, for appellant. Argued:
Mickellea M. Tennis.
On brief: Kegler, Brown, Hill + Ritter, Brendan P. Feheley,
and Jane K. Gleaves, for appellee. Argued: Jane K. Gleaves.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, Trent Thomson, appeals the April 28, 2020 decision and
entry of the Franklin County Court of Common Pleas granting summary judgment in favor
of defendant-appellee Boss Excavating & Grading, Inc. ("Boss"). For the following reasons,
we reverse.
I. Facts and Procedural History
{¶ 2} On January 31, 2019, appellant filed a complaint in the trial court. In his
complaint, appellant asserted Boss failed to pay prevailing wage in accordance with R.C.
4115.01 et seq. and wrongfully discharged him in violation of public policy.
{¶ 3} On March 5, 2019, Boss filed a motion to dismiss appellant's complaint
pursuant to Civ.R. 12(B)(6) for failing to exhaust his administrative remedies and, thereby,
No. 20AP-263 2
failing to state a claim upon which relief could be granted. On March 18, 2019, appellant
filed an amended complaint in which he dropped the prevailing wage claim and asserted
only a claim for wrongful discharge in violation of public policy. Appellant alleged he
worked as a supervisor for Boss on a project in New Albany, Ohio. Between May and
November 2018, Boss failed to pay appellant and other Boss employees prevailing wages.
Appellant received complaints from the employees he supervised regarding Boss's failure
to pay prevailing wage. Appellant relayed these complaints to his superiors multiple times,
but the employees were still not paid the proper prevailing wage. On November 5, 2018,
appellant alleged he again informed his superiors at Boss regarding the employee
complaints, stating that he would contact the Ohio Department of Labor if Boss did not
properly pay the employees prevailing wage. According to appellant, Boss immediately
fired him. In his amended complaint, appellant alleged that he suffered damages due to his
wrongful termination including back pay, front pay, and pain and suffering. Appellant also
alleged he is entitled to punitive damages. Appellant demanded judgment for lost wages,
punitive damages, reasonable attorney fees and costs. Although appellant did not
specifically seek reinstatement, he did request "any additional relief as this Court deems
just and proper." (Am. Compl. at 4.) On April 1, 2019, Boss filed an answer to appellant's
amended complaint.
{¶ 4} On March 4, 2020, Boss filed a motion for summary judgment. On March 31,
2020, appellant filed a response to Boss's summary judgment motion. On April 28, 2020,
the trial court filed a decision and entry granting summary judgment in favor of Boss.
II. Assignment of Error
{¶ 5} Appellant appeals and assigns the following single error for our review:
The Trial Court erred in finding that the jeopardy element of a
common law wrongful discharge claim is not met here.
III. Analysis
{¶ 6} In his single assignment of error, appellant challenges the trial court's
conclusion that he cannot establish the jeopardy element of his wrongful discharge claim
as a matter of law. Appellant argues R.C. Chapter 4115 articulates a substantive right of
employees to be paid a prevailing wage. Appellant further argues that the remedies set
forth in R.C. Chapter 4115 do not adequately protect his substantive right to be paid a
No. 20AP-263 3
prevailing wage. Appellant argues the trial court erred in granting summary judgment in
favor of Boss on the grounds that the jeopardy element of the common law wrongful
discharge in violation of public policy claim had not been met.
A. Standard of Review
{¶ 7} We review a decision on a motion for summary judgment under a de novo
standard. LRC Realty, Inc. v. B.E.B. Properties, 160 Ohio St.3d 218, 2020-Ohio-3196, ¶ 11.
De novo appellate review means the court of appeals conducts an independent review,
without deference to the trial court's decision. Wiltshire Capital Partners v. Reflections II,
Inc., 10th Dist. No. 19AP-415, 2020-Ohio-3468, ¶ 12. Summary judgment is appropriate
only when the moving party demonstrates: (1) no genuine issue of material fact exists,
(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
could come to but one conclusion and that conclusion is adverse to the party against whom
the motion for summary judgment is made. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997). In ruling on a motion for summary judgment,
the court must resolve all doubts and construe the evidence in favor of the nonmoving
party. Premiere Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No. 18AP-736, 2019-
Ohio-4015, ¶ 6.
{¶ 8} Pursuant to Civ.R. 56(C), the party moving for summary judgment bears the
initial burden of informing the trial court of the basis for the motion and of identifying those
portions of the record demonstrating the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party cannot satisfy this initial
burden by simply making conclusory allegations, but instead must demonstrate, including
by use of affidavit or other evidence allowed by Civ.R. 56(C), that there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.
Wiltshire Capital at ¶ 13. If the moving party fails to satisfy this initial burden, the court
must deny the motion for summary judgment; however, if the moving party satisfies the
initial burden, the nonmoving party has a burden to respond, by affidavit or otherwise as
provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial.
Dresher at 293; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068,
2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).
No. 20AP-263 4
B. Common Law Claim for Wrongful Discharge in Violation of Public
Policy
{¶ 9} "The traditional rule in Ohio is that a general or indefinite hiring is
terminable at the will of either the employer or the employee, for any cause or no cause."
Miracle v. Ohio Dept. of Veterans Servs., 157 Ohio St.3d 413, 2019-Ohio-3308, ¶ 11, citing
Collins v. Rizkana, 73 Ohio St.3d 65, 67 (1995). This general rule is "commonly known as
the employment-at-will doctrine, which was judicially created and thus may be judicially
abolished." Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, ¶ 7,
citing Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 161 (1997). In 1990, the Supreme
Court of Ohio first recognized an exception to this rule for wrongful discharge in violation
of public policy, holding that "[p]ublic policy warrants an exception to the employment-at-
will doctrine when an employee is discharged or disciplined for a reason which is prohibited
by statute." Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228 (1990),
paragraph one of the syllabus. See Painter v. Graley, 70 Ohio St.3d 377 (1994), paragraph
three of the syllabus (recognizing that sources of public policy other than statutes may
provide the basis for a wrongful-discharge claim). "The basis of this exception is that when
the General Assembly enacts laws that are constitutional, the courts may not contravene
the legislature's expression of public policy. * * * [T]he judicial doctrine of employment at
will must yield when it contravenes the public policy as established by the General
Assembly." Sutton at ¶ 8, citing Painter at 385.
{¶ 10} In order to prevail on a claim for wrongful discharge in violation of public
policy, a plaintiff must establish four elements:
(1) that a clear public policy existed and was manifested either
in a state or federal constitution, statute or administrative
regulation or in the common law ("the clarity element"), (2)
that 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"), and (4) the employer lacked
an overriding legitimate business justification for the
dismissal ("the overriding-justification element").
No. 20AP-263 5
Miracle at ¶ 12, citing Collins at 69-70. The clarity and jeopardy elements present questions
of law, whereas the causation and overriding-justification elements present factual
questions and, as such, are determined by the finder of fact.
{¶ 11} As claims for wrongful discharge in violation of public policy are made under
common law, it is the responsibility of the courts to "determine when public-policy
exceptions must be recognized and to set the boundaries of such exceptions." Sutton at ¶ 8,
citing Kulch at 161. Since Greeley, the Supreme Court has examined claims for wrongful
discharge in violation of public policy in a variety of contexts. See Collins (holding that an
employee may bring a cause of action for wrongful discharge in violation of public policy
based on sexual harassment and discrimination); Kulch (holding that an employee who is
discharged or disciplined for filing a complaint with the Occupational Safety and Health
Administration ("OSHA") concerning matters of health and safety in the workplace may
bring a cause of action for wrongful discharge in violation of public policy); Wiles v. Medina
Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994 (declining to recognize wrongful discharge
in violation of public policy exception where employee brought common law claim for
violation of Family and Medical Leave Act ("FMLA")); Leininger v. Pioneer Natl. Latex, 115
Ohio St.3d 311, 2007-Ohio-4921 (declining to recognize wrongful discharge in violation of
public policy exception for claim based on Ohio's public policy against age discrimination);
and Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751 (holding that
employee who was terminated while receiving workers' compensation could not bring
cause of action for wrongful discharge in violation of public policy).
C. Clarity Element
{¶ 12} Because the jeopardy element requires us to examine whether a plaintiff's
dismissal would jeopardize public policy, we must begin our analysis with an examination
of the clarity element to identify the public policy at issue. In determining whether the
clarity element was met, the Supreme Court has stated that a court must "identify whether
a clear public policy exists in Ohio" that is contravened by the conduct at issue. Collins at
70. The Supreme Court has held that " '[c]lear public policy' sufficient to justify an
exception to the employment-at-will doctrine is not limited to public policy expressed by
the General Assembly in the form of statutory enactments, but may also be discerned as a
matter of law based on other sources, such as the Constitutions of Ohio and the United
No. 20AP-263 6
States, administrative rules and regulations, and the common law." Painter at paragraph
three of the syllabus. See Kulch at 150.
{¶ 13} Boss, in its motion for summary judgment did not assert that appellant was
unable to establish the clarity element. Rather, Boss argued appellant could not establish
the jeopardy element "[b]ecause [appellant's] wrongful termination claim has nothing to
do with the public policy that the Ohio prevailing wage law is designed to protect." (Mot.
for Sum. Jgmt. at 2.) Although the trial court did not expressly state that it was addressing
the clarity element, implicitly it did. In addressing the jeopardy element, it stated that
"denying [appellant's] claim does not jeopardize the public policy of the statute, which is to
protect the fairness of employee wages for public projects that have been contracted to
private companies." (Decision at 7.) Further, the court stated that "[t]he remedies within
the statute sufficiently protect society's interest and discourage employers from
disenfranchising their employees." (Decision at 7.) The court also quoted from Pruneau v.
State, 191 Ohio App.3d 588, 2010-Ohio-6043 (1oth Dist.), Associated Builders & Contrs. of
Cent. Ohio v. Franklin Cty. Bd. of Commrs., 125 Ohio St.3d 112, 2010-Ohio-1199, and
Bergman v. Monarch Constr. Co., 124 Ohio St.3d 534, 2010-Ohio-622, to determine the
general purpose of R.C. Chapter 4115.
{¶ 14} As we explain below, we find the clarity element to be met. R.C. Chapter 4115
sets forth Ohio's prevailing wage laws. R.C. 4115.05 provides that "[t]he prevailing rate of
wages to be paid * * * to laborers, workers, or mechanics upon public works shall not be
less * * * than the prevailing rate of wages then payable in the same trade or occupation in
the locality where such public work is being performed," and "[e]very contract for a public
work shall contain a provision that each laborer, worker, or mechanic, employed by such
contractor, subcontractor, or other person about or upon such public work, shall be paid
the prevailing rate of wages provided in this section." (Emphasis added.) Thus, " '[t]he
prevailing wage statutes * * * require contractors and subcontractors for public
improvement projects to pay laborers and mechanics the so-called prevailing wage in the
locality where the project is to be performed.' " Sheet Metal Workers' Internatl. Assn. Local
Union No. 33 v. Gene's Refrig., Heating & Air Conditioning, Inc., 122 Ohio St.3d 248,
2009-Ohio-2747, ¶ 26, quoting J.A. Croson Co. v. J.A. Guy, Inc., 81 Ohio St.3d 346, 349
(1998). Therefore, we find the clarity element met because R.C. Chapter 4115 expresses a
No. 20AP-263 7
clear public policy requiring the payment of prevailing wage sufficient to allow for the
recognition of a cause of action for wrongful discharge in violation of public policy. Collins
at 73 (finding clarity element met by recognizing "clear public policy against workplace
sexual harassment" expressed in two statutory provisions was "sufficient to justify an
exception to the employment-at-will doctrine").
D. Jeopardy Element
{¶ 15} Having found the clarity element met, we must next examine the jeopardy
element. In order to establish the jeopardy element, appellant must establish that without
the common law claim for wrongful discharge in violation of public policy, the clear public
policy of requiring payment of prevailing wage would be compromised. See Leininger at
¶ 21. The Supreme Court has developed the framework for discerning whether the jeopardy
element has been met. In Wiles, the Supreme Court stated:
An analysis of the jeopardy element necessarily involves
inquiring into the existence of any alternative means of
promoting the particular public policy to be vindicated by a
common-law wrongful discharge claim. Id. at 44, Section 7.17.
Where, as here, the sole source of the public policy opposing
the discharge is a statute that provides the substantive right
and remedies for its breach, "the issue of adequacy of
remedies" becomes a particularly important component of the
jeopardy analysis. See Collins, 73 Ohio St.3d at 73, 652 N.E.2d
653. "If the statute that establishes the public policy contains
its own remedies, it is less likely that tort liability is necessary
to prevent dismissals from interfering with realizing the
statutory policy." 2 Perritt at 71, Section 7.26. Simply put,
there is no need to recognize a common-law action for
wrongful discharge if there already exists a statutory remedy
that adequately protects society's interests. See Ross v.
Stouffer Hotel Co. (Hawaii) Ltd., Inc. (1994), 76 Haw. 454,
464, 879 P.2d 1037; Erickson v. Marsh & McLennan Co., Inc.
(1990), 117 N.J. 539, 562, 569 A.2d 793; Kofoid v. Woodard
Hotels, Inc. (1986), 78 Ore.App. 283, 286-287, 716 P.2d 771,
citing Walsh v. Consol. Freightways (1977), 278 Ore. 347, 563
P.2d 1205. In that situation, the public policy expressed in the
statute would not be jeopardized by the absence of a common-
law wrongful-discharge action in tort because an aggrieved
employee has an alternate means of vindicating his or her
statutory rights and thereby discouraging an employer from
engaging in the unlawful conduct.
No. 20AP-263 8
Id. at ¶ 15.
{¶ 16} Recently, in House v. Iacovelli, 159 Ohio St.3d 466, 2020-Ohio-435, the
Supreme Court restated the framework for analysis of the jeopardy element:
The jeopardy-element analysis generally involves inquiring
into the existence of any alternative means of promoting the
particular public policy to be vindicated by a wrongful-
termination-in-violation-of-public-policy claim. Wiles v.
Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, 773
N.E.2d 526, ¶ 15 (lead opinion). When the sole source of the
public policy is a statutory scheme that provides rights and
remedies for its breach, [as the court determined in Iacovelli],
we must consider whether those remedies are adequate to
protect society's interest as to the public policy. Wiles at ¶ 15;
see Collins at 73. It is less likely that a wrongful-termination-
in-violation-of-public-policy claim is necessary when
remedies for statutory violations are included in the statutory
scheme. Wiles at ¶ 15 ("there is no need to recognize a
common-law-action for wrongful discharge if there already
exists a statutory remedy that adequately protects society's
interests"). This is especially true "when remedy provisions
are an essential part of the statutes upon which the plaintiff
depends for the public policy claim and when those remedies
adequately protect society's interest by discouraging the
wrongful conduct." Leininger v. Pioneer Natl. Latex, 115 Ohio
St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 27.
(Emphasis added.) Id. at ¶ 16.
{¶ 17} In discussing the particular public policy at issue in Iacovelli, the Supreme
Court was careful to distinguish between public policies that promote only a government
No. 20AP-263 9
or society's1 interest and "public policies that protect substantial2 rights of the employee."
Id. at ¶ 19.3
{¶ 18} Therefore, pursuant to the framework outlined in Wiles and Iacovelli, in
examining the jeopardy element of the wrongful termination claim, we must determine:
(1) whether the public policy underlying Ohio's prevailing wage law promotes society's
interests, protects substantive rights of employees or both, and (2) whether the remedies
outlined in R.C. Chapter 4115 adequately protect such interests and/or rights.4
1. Whether Public Policy of Prevailing Wage Promotes Society's
Interests, Protects Substantive Rights of Employees or Both
{¶ 19} We first consider whether the public policy of prevailing wage promotes
society's interests, protects substantive rights of employees, or both. The Supreme Court
has recognized Ohio's prevailing wage public policy both: (1) protects the substantive rights
of employees, and (2) promotes society's interests.
1 We have observed that wrongful discharge case law has used the phrases "government interest," "state's
interest" and "society's interest" interchangeably. For consistency, we will use the phrase "society's interest"
to refer to all three phrases.
2 We have observed that wrongful discharge case law has used the terms "substantial" rights and "substantive"
rights interchangeably. See Iacovelli at ¶ 19, 22. For consistency, we will use the term "substantive" rights to
refer to both terms.
3 In Iacovelli, the Supreme Court determined that the public policy announced in the case protects a particular
society's interest: the accurate reporting of employee's wages to the Bureau of Unemployment Compensation,
and further that such public policy was "not like the public policies that [it] recognized in Kulch, Collins, Wiles,
Leininger, and Bickers, which specifically protect employees." Id. at ¶ 20. The court then determined "looking
only at the public policy [in Iacovelli] and R.C. Chapter 4141" that a personal remedy was not necessary to
discourage wrongful conduct by employers and the remedies in the statute are sufficient to protect society's
interest in the public policy that employers should accurately report employee's pay and tips to the Bureau of
Unemployment Compensation. (Emphasis added.) Id. at ¶ 18.
4 We reject the trial court's analysis framework that "the Court finds that the distinction between whether a
public policy protects a substantive right or a particular government interest turns on whether the remedies
available under the applicable statute adequately protect the public policy it creates and effectively deter acts
that contravene that policy." (Decision at 6.) The trial court did not cite to any authority to support the blurring
of the two questions. Nor do we find any such authority. Instead, we follow the analysis framework set forth
in Wiles and Iacovelli.
No. 20AP-263 10
a. Public Policy of Prevailing Wage Protects Substantive Right of
Employees
{¶ 20} The public policy of protecting the substantive right of employees was
addressed in Sheet Metal Workers'. In that case, the court looked to the actual preamble
language of legislation enacting Ohio's prevailing wage law in 1931, and recognized that the
General Assembly5 provided the law's purpose was " '[t]o establish a fair rate of wages to
be paid to workmen and mechanics employed in construction of public improvements.' "
(Emphasis added.) Id. at ¶ 30, quoting H.B. No. 3, 114 Ohio Laws, 116. Subsequently, the
Supreme Court stated that "the legislative intent of the prevailing-wage law in R.C. Chapter
4115 is to 'provide a comprehensive, uniform framework for, inter alia, worker rights and
remedies vis-a-vis private contractors, sub-contractors and materialmen engaged in the
construction of public improvements in this state.' " (Emphasis added.) Bergman at ¶ 10,
quoting State ex rel. Evans v. Moore, 69 Ohio St.2d 88, 91 (1982) (plurality opinion). This
5 In 2005, the Legislative Service Commission ("LSC") also recognized that among the several purposes behind
the prevailing wage statute is to "guarantee" that employees be paid a prevailing wage. During the 126th
General Assembly, H.B. No. 222 was introduced to repeal Ohio's prevailing wage law. The bill was assigned to
the House Commerce & Labor Committee, yet according to LSC's Status Report of Legislation, it appears the
bill was never considered by the full House of Representatives. Nevertheless, in its Fiscal Note & Local Impact
Statement regarding H.B. No. 222, LSC answered the question "Why Were Prevailing Wage Laws
Established?" as follows:
When the federal and Ohio's prevailing wage law was passed in 1931, the country was in the Great
Depression. Unemployment was high and the government was concerned that employers might cut
wages in order to win contracts. Therefore, part of the prevailing wage's intent was to prevent lower
wage labor from outside an area where public construction occurred from entering a local market.
Through this legislation, workers in the specified locality would be guaranteed to be paid the
'prevailing' wage rate for public construction projects. This protected the locality from cheaper
outside labor. The purpose appears to have been to promote the stability of local economies.
Another purpose of the prevailing wage law was to ensure that a firm was not able to set local wage
rates. Because public projects can dominate economic activity in a locality, one or several firms may
be able to garner significant market share. The argument proceeds by indicating that firms with a
large market share could determine local wage rates. To maintain their dominance, the firm could
demand low wage rates.
Still another case for the establishment of prevailing wage laws was the need to protect a highly
cyclical construction industry. Demand for construction labor fluctuates with the business cycle.
Upward swings in the economy generally lead to greater construction labor demands. Downward
swings have the opposite effect. Although prevailing wage laws do not protect the construction
industry from cyclical swings, it does afford construction workers a determined wage rate during
the times they complete work on public projects." (Emphasis added.) LSC, Fiscal Note & Local
Impact Statement, https://www.lsc.ohio.gov/documents/gaDocuments/126ga/hb0222in.htm
(accessed Oct. 21, 2021).
No. 20AP-263 11
court has also recognized the public policy of protecting the substantive right of workers.
In Robbins Sound, Inc. v. Ohio Univ., 70 Ohio App.3d 212, 220 (10th Dist.1990), we stated
that "R.C. Chapter 4115 imposes certain duties and creates specific remedies to achieve the
underlying purpose of ensuring that employees who perform labor on a public
improvement are paid the prevailing wage rate enjoyed by similar employees working on
private projects in a given locality." (Emphasis added.) See also Tri-M Group, L.L.C. v.
Univ. of Cincinnati, 10th Dist. No. 10AP-486, 2010-Ohio-6398, ¶ 7, quoting Robbins Sound
at 220. The Supreme Court's and our recognition of Ohio's prevailing wage public policy of
protecting the substantive right of employees is consistent with the General Assembly's use
of mandatory language in R.C. 4115.05 that laborers, workers and mechanics "shall be paid
the prevailing rate of wages." (Emphasis added.)6 Thus, the Supreme Court and our court
have recognized that Ohio's prevailing wage is a public policy that protects the substantive
right of employees to be paid the prevailing wage.
b. Public Policy of Prevailing Wage Promotes Society's Interest
{¶ 21} The Supreme Court has also stated that Ohio's prevailing wage public policy
promotes society's interest. In Evans, the Supreme Court stated that "[t]he primary
purpose7 of the prevailing wage law is to support the integrity of the collective bargaining
process by preventing the undercutting of employee wages in the private construction
sector." Id. at 91. Thus, the Supreme Court has recognized Ohio's prevailing wage public
6 In addition, R.C. 4115.10(D) states: "Where persons are employed and their rate of wages has been
determined as provided in section 4115.04 of the Revised Code, no person, either for self or any other person,
shall request, demand, or receive, either before or after the person is engaged, that the person so engaged pay
back, return, donate, contribute, or give any part or all of the person’s wages, salary, or thing of value, to any
person, upon the statement, representation, or understanding that failure to comply with such request or
demand will prevent the procuring or retaining of employment, and no person shall, directly or indirectly, aid,
request, or authorize any other person to violate this section. This division does not apply to any agent or
representative of a duly constituted labor organization acting in the collection of dues or assessments of such
organization." See also Ohio Adm.Code 4101:9-4-20(E). Ohio Adm.Code 4101:9-4-20(D) states: "An employer
shall not pay less than the prevailing rate of wages by docking pay, docking time, or deducting pay for any
purpose unless provided for in sections 4115.03 to 4115.16 of the Revised Code or division-level 4101:9 rules
of the Administrative Code."
7 We recognize that in Evans the court stated that "[a]bove all else" the primary purpose of the prevailing wage
law is to support the integrity of the collective bargaining process. However, Evans was decided in 1982, and
subsequently, in 2009, as noted above, in Sheet Metal Workers, the court looked specifically to the preamble
of the Act enacting Ohio's prevailing wage law to reiterate the General Assembly's concurrent purpose of
establishing a fair rate of wages to be paid to workers.
No. 20AP-263 12
policy of promoting society's interest in supporting the integrity of the collective bargaining
process.
2. Whether the R.C. 4115 Remedies Adequately Protect the Employee's
Substantive Right and Society's Interest
{¶ 22} To answer the second question, we must address whether the remedies
outlined in R.C. Chapter 4115 adequately protect: (1) the substantive right of employees to
receive the prevailing wage, and (2) society's interest in supporting the collective bargaining
process.
{¶ 23} Here, in granting summary judgment in favor of Boss, the trial court found
as a matter of law that appellant was unable to satisfy the jeopardy element of his wrongful
discharge claim. The trial court found that appellant's claim for damages was capable of
being addressed within the framework of the prevailing wage statute. Furthermore, the
court found the remedies within the prevailing wage statute sufficiently protect society's
interest and discourage employers from violating its provisions. The trial court noted that
the prevailing wage statute did not contain a whistleblower provision that provided an
employee with a personal cause of action when the employee suffered retaliation for
reporting of a prevailing wage violation.8 The court concluded that if the General Assembly
"wished to create substantive rights for employees under R.C. Chapter 4115, it could have
done so." (Decision at 7.) Thus, the trial court found appellant could not maintain a claim
for wrongful discharge in violation of public policy as he failed to establish the jeopardy
element as a matter of law.
8 The trial court also stated that "R.C. Chapter 4115 does not have a whistleblower section that protects the
employee or bestows a personal cause of action for retaliating against the reporting of a prevailing wage
violation. Had the legislature wished to create substantive rights for employees under R.C. Chapter 4115, it
could have done so." (Decision at 7.) Boss also asserts the lack of whistleblower provisions in support of its
argument that the General Assembly did not enact the prevailing wage law to provide employees with a
substantive right. Boss points to the Supreme Court's observation in Iacovelli that the statute at issue in that
case, R.C. Chapter 4141, did not contain a whistleblower provision, "does not serve to protect the employee"
and "[h]ad the General Assembly wished to create substantive rights for the employee in this case, it could
have done so." Iacovelli at ¶ 22. As we explain above, the case before us is distinguished from Iacovelli in that
the language of R.C. Chapter 4115, its preamble, the Supreme Court and our court have recognized in R.C.
Chapter 4115 an underlying public policy of protecting substantive rights of employees to receive a prevailing
wage. Therefore, it is not necessary for us to consider the significance of lack of whistleblower protections in
R.C. Chapter 4115.
No. 20AP-263 13
{¶ 24} In the context of determining whether the jeopardy element of a wrongful
discharge in violation of public policy claim, the Supreme Court has not addressed whether
the remedies set forth in R.C. Chapter 4115 adequately protect: (1) the substantive right of
an employee to be paid a prevailing wage, or (2) the society's interest in supporting the
integrity of the collective bargaining process. However, in different contexts, the court has
characterized the statutory remedies in R.C. Chapter 4115 are "comprehensive" and
"uniform."9 Notwithstanding this characterization in different contexts, it is still necessary
to determine whether the remedies set forth in R.C. Chapter 4115 adequately protect the
9 In the context of deciding whether a common pleas court had jurisdiction to preside over the relator's
"appeal" was consistent with the procedural remedies for violations of prevailing wage law set forth in R.C.
Chapter 4115, the Supreme Court stated "R.C. Chapter 4115 provides a comprehensive statutory procedure for
effecting compliance with the prevailing wage law through administrative and civil proceedings." State ex rel.
Harris v. Williams, 18 Ohio St.3d 198, 200 (1985).
In the context of holding that the prosecuting attorney has authority to prosecute criminal violations of
prevailing wage laws, the Supreme Court stated:
R.C. 4115.03 to 4115.16 set forth requirements relating to the payment of the prevailing wage on public
works projects, and also provide a comprehensive framework for securing compliance with such
provisions.* * * The foregoing sections provide a comprehensive and uniform system under which the
department is initially responsible for securing compliance and compensation through administrative
and civil proceedings.
State v. Buckeye Elec. Co., 12 Ohio St.3d 252, 253 (1984).
In the context of deciding whether a city may unilaterally exempt itself from the prevailing wage law, the
Supreme Court in Evans stated "[t]he state's interest in supporting the collective bargaining process provides
an additional justification for the conclusion that the challenged ordinance is beyond the scope of municipal
power. The prevailing wage law evidences a legislative intent to provide a comprehensive, uniform framework
for, inter alia, worker rights and remedies vis-a-vis private contractors, sub-contractors and materialmen
engaged in the construction of public improvements in this state. The prevailing wage law delineates civil and
criminal sanctions for its violation." Evans at 91.
In the context of deciding whether the penalties set forth in R.C. 4115.10(A) are mandatory or discretionary,
the Supreme Court in Bergman stated:
We have previously stated that the legislative intent of the prevailing-wage law in R.C. Chapter 4115
is to "provide a comprehensive, uniform framework for, inter alia, worker rights and remedies vis-a-
vis private contractors, sub-contractors and materialmen engaged in the construction of public
improvements in this state." State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 91, 23 O.O.3d
145, 431 N.E.2d 311 (plurality opinion). * * * To achieve this end, R.C. Chapter 4115 provides to
employees who have been denied the prevailing wage a comprehensive statutory procedure of
administrative and civil proceedings to ensure an employer's compliance with the prevailing-wage
laws. State ex rel. Harris v. Williams (1985), 18 Ohio St.3d 198, 200, 18 OBR 263, 480 N.E.2d 471.
Id. at ¶ 10.
No. 20AP-263 14
right and interest in the context before us. In so doing, we look to Iacovelli and Wiles for
the framework of analysis. We begin by summarizing the statutory remedies available for
violations of prevailing wage requirements under R.C. Chapter 4115.
a. Summary of Statutory Remedies for Violations of Prevailing Wage
Requirements
{¶ 25} The prevailing rate of wages for a particular class of work is determined by
the director of the Ohio Department of Commerce ("the director"). R.C. 4115.04(A)(1). See
Associated Builders at ¶ 11. The director is also charged with enforcing compliance with
the prevailing wage laws. R.C. 4115.10(E). Under the prevailing wage statute, no employer
shall violate the provisions of R.C. 4115.03 to 4115.16 or permit an employee to work for less
than the fixed rate of wages as determined by the director. R.C. 4115.10(A). If an employer
violates such statutory provisions by paying an employee less than the prevailing wage, "the
employee has several options to recoup [the] underpayment." Bergman at ¶ 11.
{¶ 26} Under the first option, an affected employee may institute an enforcement
action pursuant to R.C. 4115.10(A) to recoup the underpayment. Alternatively, pursuant to
R.C. 4115.10(B), the employee may assign the right to institute an enforcement action by
filing a written complaint with the director. See Ohio Adm.Code 4101:9-4-23. Finally, in
the event the employee does not institute an enforcement action or assign the right to
pursue an action to the director within the statutorily specified time, the director, upon a
determination that there was a violation of the prevailing wage provisions, is obligated to
"bring any legal action necessary to collect any amounts owed to employees and the
director." R.C. 4115.10(C). See Harris v. Van Hoose, 49 Ohio St.3d 24, 26 (1990) (stating
that "the director is required to bring the action sua sponte" pursuant to R.C. 4115.10(C)
where the prerequisite statutory conditions have been met).
{¶ 27} Under the employee-initiated action pursuant to R.C. 4115.10(A), the
employee is entitled to the following remedy for underpayment of wages: "the difference
between the fixed rate of wages and the amount paid to the employee and in addition
thereto a sum equal to twenty-five per cent of that difference." Additionally, the statute
requires that an employer found to have paid less than the prevailing wage "shall pay a
penalty to the director of seventy-five per cent of the difference between the fixed rate of
wages and the amount paid to the employees on the public improvement." R.C. 4115.10(A).
No. 20AP-263 15
{¶ 28} In addition to the restitution and penalty provisions under R.C. 4115.10, the
director must file "with the secretary of state a list of contractors, subcontractors, and
officers of contractors and subcontractors who have been prosecuted and convicted for
violations of or have been found to have intentionally violated [R.C.] 4115.03 to 4115.16."
R.C. 4115.133(A). Those subject to the reporting provision in R.C. 4115.133(A) are barred
from "contracting directly or indirectly with any public authority for the construction of a
public improvement or from performing any work on the same * * * for a period of one
year." R.C. 4115.133(B). See Associated Builders at ¶ 15. If those subject to the reporting
provision in R.C. 4115.133(A) are found to have intentionally violated the prevailing wage
statute another time within five years, they are barred from contracting or performing work
for a period of three years. R.C. 4115.133(B).
{¶ 29} Furthermore, criminal penalties apply to those found to have violated certain
provisions of the prevailing wage statutes. R.C. 4115.99. See Associated Builders at ¶ 15.
Violations of R.C. 4115.08 and 4115.09 are subject to a fine of $25 to $500. R.C. 4115.99(A).
Those found to have violated certain other sections, including R.C. 4115.10, are subject to
being found guilty of a misdemeanor of the second degree for a first offense and a
misdemeanor of the first degree for each subsequent offense. R.C. 4115.99(B).
b. General Assembly's Intent to Afford Remedies Beyond Restitution
Only When Prevailing Wage Violation is Intentional
{¶ 30} Before proceeding with our analysis of whether the remedies set forth in R.C.
Chapter 4115 are adequate to promote society's interest in collective bargaining and protect
the substantive right of an employee to receive the prevailing wage, we must recognize the
General Assembly's clear intent to afford remedies beyond restitution only when a violation
of prevailing wage has determined to be intentional. This intent is plainly evident in R.C.
4115.13. Pursuant to R.C. 4115.13, upon the director's own motion or within five days of the
filing of a properly filed complaint under R.C. 4115.10 or 4115.16, the director must
investigate any alleged violation of prevailing wage law and make a determination as to
whether the alleged violation was committed. Upon determining that a violation was
committed, the director must determine whether such violation was "intentional" or "the
result of a misinterpretation of the statute, or an erroneous preparation of the payroll
documents." R.C. 4115.13(B) and (C). If the director finds that "any underpayment was the
No. 20AP-263 16
result of a misinterpretation of the statute, or an erroneous preparation of the payroll
documents, employers who make restitution are not subject to any further proceedings
pursuant to [R.C.] 4115.03 to 4115.16." R.C. 4115.13(C). As used in this context, "intentional
violation" is defined as a "willful, knowing, or deliberate failure to comply" with the
prevailing wage statute. R.C. 4115.13(H). Further, in determining whether a violation was
intentional, the director may consider evidence outlined at R.C. 4115.13(G).
{¶ 31} In his complaint, appellant alleged that Boss's conduct was "willful, wanton,
and [in] reckless[] disregard[] [of] the rights of Plaintiff." (Am. Compl. at 3-4.) Thus,
appellant alleged an intentional violation of the prevailing wage law.
{¶ 32} With this in mind, our analysis and holding in this case regarding whether
the remedies set forth in R.C. Chapter 4115 are adequate to promote society's interest in
prevailing wage and protect an employee's substantive right to receive the prevailing wage
is limited to circumstances where an employer committed intentional violations of
prevailing wage law.
c. Analysis of Adequacy of Remedies to Promote Society's Interest in
Supporting Collective Bargaining
{¶ 33} In examining the adequacy of remedies to promote society's interest in
supporting collective bargaining, we find Iacovelli to be instructive because the analysis
therein pertained to a public policy which protected a society's interest and emanated from
a sole source which provided rights and remedies for its breach—as is the circumstance
here.
{¶ 34} In Iacovelli, the Supreme Court analyzed whether statutory remedies in R.C.
Chapter 4141 are sufficient to protect "society's interest in ensuring that employers
accurately report employees' pay and tips to the Bureau of Unemployment Compensation."
Id. at ¶ 17. The plaintiff was an employee who worked at a restaurant, whose owner
allegedly underreported the employee's income to the state. As a result of this
underreporting of income, the employee would receive less unemployment compensation
than what she would have otherwise been entitled to receive. After the employee
complained to the restaurant owner, the restaurant terminated her employment. The
employee then brought a wrongful termination claim, arguing that her termination was in
violation of public policy as expressed in R.C. Chapter 4141, which requires employers to
No. 20AP-263 17
accurately report employees' pay and tips to the Bureau of Unemployment Compensation.
The employee argued the jeopardy element of her wrongful termination claim was met
because the remedies in R.C. Chapter 4141 were "insufficient to protect her or society's
interests and to discourage wrongful conduct" because there was "no personal remedy to
protect employees who were dismissed after informing their employers of R.C. Chapter
4141 violations." Id. at ¶ 18.
{¶ 35} The Supreme Court disagreed. It found the public policy underlying R.C.
Chapter 4141 protected only society's interest. The court noted that the General Assembly
provided multiple remedies, including forfeiture, civil action, fines, or criminal penalties,
in R.C. Chapter 4141 to discourage employers from inaccurately reporting employees' pay
and punish those who violate its provisions.10 In this context, the court found the employee
failed to establish the jeopardy element.
{¶ 36} Here, similar remedies exist in R.C. Chapter 4115. An employee, or an
interested party11 may file a complaint alleging a violation to the director and the director
shall investigate. The director may investigate on his or her own motion as well. R.C.
4115.10(A), 4115.16 and 4115.13. If the director finds a violation, a penalty of 75 percent of
the difference between the prevailing wage rate and the actual rate paid shall be assessed
and paid to the director. R.C. 4115.10(A). The employee may recover the full amount of the
difference plus 25 percent of the difference to the employee. R.C. 4115.10(A). If the director
finds intentional violations, the contractors, subcontractors and officers involved will be
10 As noted previously, the Supreme Court further stated in Iacovelli that in finding "a personal remedy is not
necessary to discourage wrongful conduct by employers and the remedies in the statute are sufficient to
protect society's interest in the public policy that employers should accurately report employees' pay and tips"
it was "looking only at the public policy and R.C. Chapter 4141." Id. at ¶ 18. In reaching this conclusion, the
court noted the public policy at issue was unlike the public policies in cases in which the court previously
recognized the jeopardy element was met because those cases involved provisions "which specifically protect
employees." Id. at ¶ 20. The public policy at issue in Iacovelli, however, did not specifically protect an
employee interest, but rather protected "a particular government interest," namely the accurate reporting of
wages to the Bureau of Unemployment Compensation. Id.
11 " 'Interested Party,' with respect to a particular contract for construction of a public improvement, means:
(1) Any person who submits a bid for the purpose of securing the award of the contract; (2) Any person acting
as a subcontractor of a person described in division (F)(1) of this section; (3) Any bona fide organization of
labor which has as members or is authorized to represent employees of a person described in division (F)(1)
or (2) of this section and which exists, in whole or in part, for the purpose of negotiating with employers
concerning the wages, hours, or terms and conditions of employment of employees; (4) Any association having
as members any of the persons described in division (F)(1) or (2) of this section." R.C. 4115.03(F).
No. 20AP-263 18
included on a list and prohibited from contracting with any public authority for a defined
period of time. R.C. 4115.133. If, after being notified by the director of a violation, a
contractor, subcontractor or officer does not timely come into compliance, the director
must notify the attorney general who must bring suit in the name of the state to enjoin
awarding of a contract, or, if a contract is already awarded, to enjoin further work. R.C.
4115.14. Finally, criminal penalties may be pursued by the prosecuting attorney for certain
violations. R.C. 4115.99.
{¶ 37} We find the remedies set forth in R.C. Chapter 4115 adequately protect
society's interest in supporting collective bargaining by discouraging the wrongful conduct.
d. Analysis of Adequacy of Remedies to Protect Substantive Right of
Employees to Receive Prevailing Wage
{¶ 38} In examining the adequacy of remedies to protect the substantive right of
employees to receive prevailing wage, we begin by noting that Iacovelli recognized that in
circumstances that involved public policies that protect substantive rights of the employee,
the Supreme Court has looked to see whether "the statutory scheme contains a sufficient
personal remedy for the aggrieved employee." Iacovelli at ¶ 19. Accordingly, we must do
the same here. We find Wiles to be instructive because the analysis therein pertained to a
public policy which protected a substantive right of an employee and emanated from a sole
source which provided rights and remedies for its breach—as is the circumstance here.
Therefore, we compare the remedies in Wiles to the remedies set forth in R.C. Chapter 4115.
We also compare the remedies in Leininger and Greeley to the remedies set forth in R.C.
Chapter 4115.
i. Comparison to remedies considered in Wiles, Leininger, and Greeley
{¶ 39} In Wiles, the employee alleged his employer wrongfully discharged him in
retaliation for exercising his rights under FMLA. Although the employee cited FMLA in his
complaint, he did not seek recovery under that statute's remedial provisions, but rather
brought only a claim for wrongful discharge in violation of public policy. Finding the clarity
element of the wrongful discharge claim was met, the Supreme Court focused on the
jeopardy element.
No. 20AP-263 19
{¶ 40} As noted above, the court in Wiles stated that where "the sole source of the
public policy opposing the discharge is a statute that provides the substantive right and
remedies for its breach, 'the issue of adequacy of remedies' becomes a particularly
important component of the jeopardy analysis." (Emphasis sic.) Wiles at ¶ 15, quoting
Collins at 73. Focusing on the adequacy of remedies under the FMLA statute, the court
found that where "an aggrieved employee has an alternate means of vindicating his or her
statutory rights and thereby discouraging an employer from engaging in the unlawful
conduct," the public policy provided under the statute would not be jeopardized, and, as a
result, it was unnecessary to recognize a common law wrongful discharge claim. Id. at ¶ 15.
{¶ 41} In Wiles, the Supreme Court noted the FMLA's remedial scheme provided
for: (1) compensatory damages equal to the lost amount of wages, salary benefits or other
compensation, plus interest, or, if no wages were lost due to the violation, any actual
monetary losses sustained as a direct result of the violation, (2) liquidated damages in like
amount of the compensatory damages, (3) prejudgment interest, (4) reasonable attorney
fees, and (5) equitable relief as appropriate, including reinstatement and promotion or an
award of front pay either in lieu of reinstatement, or in some cases, in conjunction with it
(i.e., for the period between judgment and reinstatement). Wiles at ¶ 16-17. As a result, the
court concluded the FMLA's remedies "provide[d] an employee with a meaningful
opportunity to place himself or herself in the same position the employee would have been
absent the employer's violation of the FMLA." Id. at ¶ 17. Furthermore, the court clarified
its analysis in Kulch, stating that "Kulch does not * * * stand for the proposition that
statutory remedies are inadequate—therefore warranting a Greeley claim—when those
remedies provide something less than the full panoply of relief that would be available in a
tort cause of action for wrongful discharge." Id. at ¶ 20. Consistent with this, the court
noted that although the FMLA did not allow for punitive damages or damages for emotional
distress, the absence of such remedies did not render the statutory remedies inadequate.
Therefore, the court concluded that a common law claim for wrongful discharge in violation
of public policy was "unnecessary to vindicate the policy goals of the FMLA" and declined
to recognize such a claim. Id. at ¶ 1.
{¶ 42} In Leininger, the employee alleged his employer wrongfully discharged him
in violation of Ohio's public policy against age discrimination. The court found the clarity
No. 20AP-263 20
element was satisfied and focused on the jeopardy element, examining the remedies for age
discrimination outlined in four separate statutes. Leininger at ¶ 29. The court noted the
statutes provided for a claimant to elect between remedies providing for: (1) any legal or
equitable relief that would effectuate an individual's rights, (2) the Ohio Civil Rights
Commission to issue a cease and desist order and an order to take any further action
including, but not limited to, hiring, reinstatement or upgrading of employees with or
without pay, (3) a court to order an appropriate remedy which shall include reimbursement
for the costs and attorney fees or to reinstate the employee in his or her former position
with compensation for lost wages and fringe benefits from the date of illegal discharge, and
(4) civil action for damages, injunctive relief, or any other appropriate relief. The court
further noted that "[the statutes] have broad language regarding the relief available.
Damages, absent a restrictive modifier like compensator, actual, consequential or punitive,
is an inclusive term embracing the panoply of legally recognized pecuniary relief. Similarly,
legal relief means a remedy available in a court of law, i.e., damages." (Quotations and
citations omitted.) Id. at ¶ 30.
{¶ 43} The Leininger court noted that even though the plaintiff was required to elect
which statutory remedy to pursue, he could choose from the full spectrum of remedies
available. Therefore, the court found the jeopardy element necessary to support a common
law claim was not satisfied.
{¶ 44} The remedies in Wiles and Leininger are more comprehensive than the
statutory remedies in the case before us. Pursuant to R.C. Chapter 4115, an employee may
recover damages equal to the difference between the amount paid and the prevailing wage,
reasonable attorney fees, and an amount equal to 25 percent of the difference between the
amount paid and the prevailing wage. However, liquidated damages in the full amount of
wages lost, as were available in Wiles, are not available to an employee. Furthermore, a
broad scope of damages, as were available in Leininger, are not available to an employee.
Finally, equitable relief in the form of reinstatement, as were available in Wiles and
Leininger, are not available to an employee here. Thus, the statutory remedies set forth in
R.C. Chapter 4115 do not provide employees "with a meaningful opportunity to place
himself or herself in the same position the employee would have been absent the employer's
violation of [Ohio's prevailing wage law]." Compare Wiles at ¶ 17.
No. 20AP-263 21
{¶ 45} In Wiles and Leininger, the Supreme Court found that the jeopardy element
had not been met because the statutory remedies were adequate to protect the employees'
substantive rights. In Greeley, however, the court found the employee could pursue a
common law cause of action in wrongful discharge to redress a violation. The court held
that the plaintiff had stated a cause of action for wrongful termination in violation of R.C.
3113.213 (the statute prohibiting the use of a child support withholding order as a basis for
discharging an employee). In so doing, the Greeley court, highlighted that an amendment
to the statute did not include "reinstatement and back pay remedies." Id. at 231. The court
further noted that "[i]mposing a fine against an employer who violates R.C. 3113.213(D) is
a matter between the employer and the government. Whether a remedy is available to an
aggrieved employee is a wholly separate matter." Id. Finally, the court noted that "[h]ad
the General Assembly intended to bar a civil remedy to workpersons situated similarly to
[Greeley], it certainly knew how to do so." Id.; see, e.g., R.C. 4112.02(N).
{¶ 46} Similar to the statutory remedies considered in Greeley, as noted above, the
statutory remedies set forth in R.C. Chapter 4115 do not include reinstatement or backpay.
Furthermore, the 75 percent penalty assessed and paid to the director, suspension of being
awarded public contracts, injunctions to stop work, and criminal penalties "[are] a matter
between the employer and the government." Greeley at 231. Finally, there is no indication
in the text of R.C. Chapter 4115 that the General Assembly intended to bar civil remedies or
to limit relief exclusively to statutory remedies.12
{¶ 47} Although we hold above that society's interest in supporting the collective
bargaining process is adequately protected by the remedies set forth in R.C. Chapter 4115,
we cannot say the substantive right of employees to receive a prevailing wage are adequately
protected by the remedies set forth in R.C. Chapter 4115. Consistent with Greeley, we hold
that the substantive right of an employee to receive the prevailing wage is not adequately
protected by the remedies set forth in R.C. Chapter 4115—which do not include broad
12R.C. 4115.10(A) provides an "employee may file suit for recovery [difference between prevailing wage and
the amount paid to the employee plus a sum equal to 25 percent of that difference] within ninety days of the
director's determination of a violation of sections 4115.03 to 4115.16 of the Revised Code or is barred from
further action under this division." (Emphasis added.) There is no indication in R.C. Chapter 4115 that an
employee's suit pursuant to R.C. 4115.10(A) is the exclusive remedy available to the employee.
No. 20AP-263 22
damages, including full liquidated damages and back pay, and do not include equitable
relief such as reinstatement.
ii. Remedies unavailable to appellant as a discharged employee
{¶ 48} Finally, appellant argues the provisions of R.C. 4115.10 limit remedies to only
current employees and would not be available to appellant, a discharged employee.13 In
support of this contention, appellant points to Sutton.
{¶ 49} In Sutton, the Supreme Court considered whether there should exist a cause
of action for wrongful discharge in violation of public policy where an injured employee
suffers a retaliatory employment action after injury on the job but before the employee files
a workers' compensation claim or institutes, pursues, or testifies in a workers'
compensation proceeding. The relevant statutory provision in that case provided that
" '[n]o employer shall discharge, demote, reassign, or take any punitive action against any
employee because the employee filed a claim or instituted, pursued or testified in any
proceedings under the workers' compensation act for an injury or occupational disease
which occurred in the course of and arising out of his employment with that employer.' "
Sutton at ¶ 13, quoting R.C. 4123.90. The remedial provisions of that statute provided:
" 'Any such employee may file an action in the common pleas court of the county of such
employment.' " (Emphasis sic.) Id. at ¶ 26, quoting R.C. 4123.90. Thus, the court found
"[e]ssentially, a gap exists in the language of the statute for conduct that occurs between
the time immediately following injury and the time in which a claim is filed, instituted, or
pursued." Id. at ¶ 14. As a result, the court found that the workers' compensation statute
did not provide adequate remedies, and, as a result, the jeopardy element was satisfied.
The court held that the term "[a]ny such employee" is a "limitation on the class of people
that can avail itself of the remedies set out in R.C. 4123.90 [and] [b]y its express terms, R.C.
13 Appellant also asserts the remedies under the prevailing wage statute are inadequate because "he was
seeking the prevailing wage for his fellow, subordinate employees, not for himself personally." (Appellant's
Brief at 16.) Appellant argues that "[a]ssuming that [he] himself did not have a claim for unpaid prevailing
wages but merely asserted it on behalf of others, [R.C.] Chapter 4115 avails no remedy to him whatsoever."
(Emphasis sic.) (Appellant's Brief at 16.) However, contrary to the assumption in his argument, appellant
alleged in his amended complaint that his "employment was terminated as a direct result of him asserting his
and his fellow employees' right to be paid a prevailing wage." (Emphasis added.) (Appellant's Compl. at 2.)
Thus, appellant alleged that he himself was subject to a prevailing wage violation. As such, we need not
determine the same. Instead, we limit our discussion to whether the remedies available to appellant under the
prevailing wage statute were sufficient to protect appellant's substantive right as an employee.
No. 20AP-263 23
4123.90 [did] not apply to Sutton or others who experience retaliatory employment action
after being injured but before they file, institute or pursue a workers' compensation claim."
Id. at ¶ 27. The court held that in such circumstance, R.C. 4123.90 does not provide
adequate remedies, and thus the jeopardy element is satisfied.
{¶ 50} Here, the remedies set forth in R.C. 4115.10(A) are available to "[a]ny
employee upon any public improvement * * * who is paid less than the fixed rate of wages
applicable thereto." No mention is made of discharged employees or former employees.
Furthermore, the remedies set forth in R.C. 4115.16 are available to "interested part[ies],"
however, "interested part[ies]," as defined in R.C. 4115.03(F), does not include discharged
or former employees.
{¶ 51} Boss argues that nothing in the statute requires such a narrow interpretation
of the term "employee" to exclude discharged or former employees. However, Boss points
to no authority that requires an interpretation that includes discharged or former
employees. Further, Boss's argument that the department of commerce form provided for
filing a prevailing wage complaint includes a box for a "former employee" is unavailing.
Boss points to no statute, rule or case law which requires the department to include such a
box. See State ex rel. Aaron's, Inc. v. Ohio Bur. of Workers' Comp., 10th Dist. No. 13AP-
170, 2014-Ohio-3425, ¶ 9 (finding Bureau of Workers' Compensation's "internal policy" did
not "establish[] a clear legal duty on the part of the bureau, or a clear legal right on the part
of the relator"); State ex rel. Medcorp, Inc. v. Ryan, 10th Dist. No. 06AP-1223, 2008-Ohio-
2835, ¶ 18; State ex rel. Bledsoe v. Marion Steel Co., 10th Dist. No. 02AP-193, 2002-Ohio-
6835, ¶ 9 (finding internal memorandum did not give clear legal right to relief requested
nor impose any clear legal duty).
No. 20AP-263 24
{¶ 52} To the contrary, Ohio Adm.Code 4101:9-4-02(K)14 defines an "[e]mployee,"
in relevant part, as "any person in the employment of an employer [any public authority,
contractor or subcontractor] who performs labor or work of the type performed by a
laborer, workman, or mechanic in the construction, prosecution, completion or repair of a
public improvement and includes owners, partners, supervisors, and working foremen who
devote more than twenty per cent of their time during a work week to such labor or work
for the time so spent." (Emphasis added.)
{¶ 53} In Collins, the court held that the availability of remedies in R.C. Chapter 4112
(prohibiting sexual harassment/discrimination) could not serve to defeat Collins' wrongful
discharge claim because those remedies were "simply not available" to Collins as her
employer was not included in the statutory definition of employer. Id. at 74.
{¶ 54} Likewise here, the remedies set forth in R.C. Chapter 4115 are simply not
available to appellant as he is no longer an employee as that term is defined in Ohio
Adm.Code 4101:9-4-02(K) and in this specific context of prevailing wage law.15 Therefore,
said remedies do not serve to defeat appellant's wrongful discharge claim. For the reasons
14Ohio Adm.Code 4101:9-4-02(K) in its entirety reads: " 'Employee' means any person in the employment of
an employer [any public authority, contractor or subcontractor] who performs labor or work of the type
performed by a laborer, workman, or mechanic in the construction, prosecution, completion or repair of a
public improvement and includes owners, partners, supervisors, and working foremen who devote more than
twenty per cent of their time during a work week to such labor or work for the time so spent. Employee does
not include an individual who is a sole proprietor. Employee also does not include full-time employees of a
public authority who have completed their probationary periods in the classified civil service of the public
authority, except such persons are employees if performing work outside the classification specifications of
the civil service position for which the probationary period has been served. Employee does not include any
person in a program administered by a public authority approved at the discretion of the director in writing
prior to work on any project or program, including, but not limited to, local workfare or community action
programs."
Ohio Adm.Code 4101:9-4-02(K) went into effect two years after the Supreme Court announced its decision in
Internatl. Union of Operating Engineers, Local 18 v. Wannemacher Masonry Co., 36 Ohio St.3d 74 (1988).
In Wannemacher Masonry, the court held that the term "employee" did not encompass the term "employer"
when the employer is a sole proprietor. In so holding, the court looked to the common usage of the terms
employee and employer. It noted that Black's Law Dictionary 471 (5 Ed.1979) defined "employee" as "[a]
person in service of another under any contract of hire, express or implied, oral or written where the employer
has the power or right to control and direct the employee in the material details of how the work is performed.
* * * One who works for an employer; a person working for salary or wages." Wannemacher Masonry at 76.
15The preamble to Ohio Adm.Code 4101:9-4-02 states: "The following definitions are provided for the
purposes of clarifying the meaning of certain terms as they appear in sections 4115.03 to 4115.16 of the Revised
Code and division-level 4101:9 rules of the Administrative Code."
No. 20AP-263 25
we have set forth above, we find the remedies available to appellant under R.C. Chapter
4115 are inadequate to protect appellant's substantive right to receive prevailing wage.
3. Jeopardy Element Met
{¶ 55} Having found clear public policy articulated in R.C. Chapter 4115 protects the
substantive right of employees to be paid prevailing wage, and that the remedies available
in R.C. Chapter 4115 are inadequate to protect such substantive right, we find the jeopardy
element has been met. As a result, we conclude the trial court erred in granting summary
judgment in favor of Boss. Accordingly, we sustain appellant's assignment of error.
IV. Conclusion
{¶ 56} Having sustained appellant's single assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas and remand this matter to that
court for further proceedings consistent with law and this decision.
Judgment reversed;
cause remanded.
MENTEL and BROGAN, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate District,
Assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).