The Ninth District declines to extend the limited waiver exception to unemployment benefits for union employees when "there is no termination package at issue, where the leave at issue could last indefinitely, and where the leave at issue was not contemplated as part of any collectively bargained agreement in the record."

City of Akron v. Director, ODJFS, 2015 Ohio 5376 (9th Dist).

http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2015/2015-Ohio-5376.pdf

December 23, 2015

Gardner was a firefighter/medic who suffered a knee injury and worked light duty from October 21, 2009 to October 6, 2010. He then applied for permanent disability and was permitted to work light duty for a period no longer than 180 days, while his application was pending. When he disability benefits were denied in December 2011, he used his remaining accrued paid leave time until it was exhausted on August 17, 2012. At that time he was placed on sick leave without pay. Gardner was approved for unemployment benefits, which was sustained by the local trial court after the City appealed.

The City appealed again, arguing that (a) Gardner, "was not able to work, not available for suitable work, and not actively seeking suitable work," and (b) that common law waiver of unemployment compensation benefits applied.

The Ninth District first rejected the City's argument that Gardner was not able to work. The Ninth District cited Hinkle v. Lennox Furnace Co., 84 Ohio App. 478, 486 (3d Dist.1948); for the proposition that "'able to work' * * * means `physical capability to work[.]'" and therefore did not require Gardner to be physically able to work in his last position as a fireman. The Ninth District, relying on evidence that Gardner did in fact work with the restrictions on light duty as long as he was permitted, found sufficient evidence to support a decision in favor of Gardner.

The Ninth District also rejected the City's argument that Gardner was ineligible for not seeking work. The Ninth District reviewed that there is no specific requirement in the statute with regard to how a claimant prove they are seeking work, other than they must supply a record of their searches, in a "manner and means prescribed by the director." The Ninth District found no requirement for a claimant to supply a record simply because an employer challenged the issue. Further, the Ninth District found evidence that Gardner was seeking work with the City through negotiations between himself, his union, and the city, which ultimately resulted in a job.

The Ninth District then turned to the limited common law waiver exception, which applies solely to union employees:

"When an employee has a termination package pursuant to a collective-bargaining agreement between [his] union and the employer, the employee is deemed to have accepted the benefits of the package, and waived [his] right to benefits, in return for [his] agreement to be terminated at a certain time." Lorain Cty. Aud., 113 Ohio St.3d 124, 2007-Ohio-1247, at ¶ 16, citing Ivy v. Dudley, 6 Ohio St.2d 261 (1966); see also Salzl v. Gibson Greeting Cards, Inc., 61 Ohio St.2d 35 (1980). "The termination when a collective-bargaining agreement exists is deemed to have been for just cause, rendering the employee statutorily ineligible for unemployment compensation."

The Ninth District reviewed that this limited waiver exception had been applied to negotiated union contracts that provide for a mandatory retirement age, whereas here, Gardner was placed on unpaid sick leave. The Ninth District also distinguished this case from an Eight District opinion in Continental Airlines, Inc. v. Ohio Dept. of Job & Family Servs., 173 Ohio App.3d 311, 2007-Ohio-5434 (8th Dist.), where a flight attend was placed on leave pursuant to a collective bargaining agreement upon reaching a point in her pregnancy. Here, the collective bargaining agreement was not part of the record and the court found no portion of the negotiated Transitional Work Policy to require "an employee to be placed on sick leave without pay at the expiration of the light duty work and exhaustion of accumulated paid leave time."

The Ninth District held that it would not "extend common law waiver to the circumstances present in this case, where there is no termination package at issue, where the leave at issue could last indefinitely, and where the leave at issue was not contemplated as part of any collectively bargained agreement in the record."

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