[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as House v. Iacovelli, Slip Opinion No. 2 020-Ohio-435.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O

. 2020-O HIO -435

H OUSE , A PPELLEE , v . I ACOVELLI ET AL ., A PPELLANTS

. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as House v. Iacovelli, Slip Opinion No. 2020-Ohio-435.] Torts—Wrongful termination in violation of public policy—Employee terminated after questioning employer’s failure to accurately report earnings to Bureau of Unemployment Compensation—Employee failed to meet jeopardy element of claim for wrongf ul termination—R.C. Chapter 4141 does not contain a personal remedy for an employee when employer fails to accurately report earnings—Remedies in statutes sufficiently protect society’s interest in discouraging em ployers from engaging in prohibited

behavior. (No. 2018-0434—Submitted April 23, 2019—Decided February 12, 20 20.)

A PPEAL from the Court of Appeal s for Medina County, No. 16CA0087-M, 2018-Ohio-443.

__________________S UPREME C OURT OF O HIO

2 F ISCHER , J. {¶ 1} We accepted this discretionary appeal to address whether appell ee, Christine House, can maintain a claim for wrongful termination in violation of public policy based upon an allegation that her employer unlawf ully terminated her employment because she had confronted the employer for failing to report accurately her earnings to the Bureau of Unemployment Compensat ion as required by R.C. Chapter 4141. We conclude that the dismissal of employ ees under

circumstances such as those i nvolved in this case does not jeop ardize any public policy that employers must accurately report employees’ pay and tips to the Bureau of Unemployment Compensation. Therefore, we determine that Hou se’s wrongfultermination-in-violation-of-public-policy claim fails and rever se the judgment of the Ninth District Court of Appeals.

I. Background A. House’s Employment {¶ 2} House worked as an employee at the Riverstone Taverne, a restau rant operated by appellant Bruce Iacovelli and owned by his business , appellant Windward Enterprises, Inc. House alleged in her complaint that she approached Iacovelli regarding the accuracy of the payroll. Iacovelli soo n thereafter terminated House’s employment, allegedly because she created “drama.” {¶ 3} House claimed that Iacovelli ha d underreported her income to th e state. If her income was underre ported, House would receive le ss unemployment compensation than what she woul d have been enti tled to otherwis e receive. B. Trial-Court Proceedings {¶ 4} House filed a complaint agains t Iacovelli for conversion, viola tions of the Fair Labor Standards Act, 29 U.S.C. 201 et seq., and wrongf ul termination in violation of public policy. Hous e amended her complaint to inc lude Windward Enterprises as a defendant and to proceed solely on the claim o f wrongful termination in violation of public policy. She asserted in her amended complaintJanuary Term, 2020

3 that the appellants’ conduct amount ed to “a violation of Ohio p ublic policy expressed or gleaned from stat utes under Ohio R.C. Chapter 4141 related to employer obligations to make payment of unemployment compensati on insurance premiums, and the common law of wrongful termination in violati on of Ohio public policy.” {¶ 5} After unsuccessfully moving to di smiss House’s complaint, the appellants moved the trial court to determine whether House’s c laim met the elements of the tort of wrongful termination in violation of pu blic policy. House opposed the motion. {¶ 6} The trial court determined that House could not maintain her cl aim. The court determined that while there is a clear public policy manifested in the provisions of R.C. Chapter 4141 that employers should accuratel y report employees’ pay and tips to the Bureau of Unemployment Compensat ion (the clarity element of the tort of wrongful termination in violation of pub lic policy), dismissing employees under circumstances lik e those involved in House’s di smissal would not jeopardize the stated public policy (the jeopardy element of th e tort). The trial court

concluded that because R.C. 4141.27 sets forth a remedy for vio lating the public policy embodied in the statute and the remedy adequately protec ts society’s interests, House’s tort claim necessarily failed. Therefore, the court dismissed House’s complaint. C. Appellate-Court Proceeding {¶ 7} House appealed the judgment of the trial court. She asserted t hat the trial court erred in dismissing her wrongful-termination-in-vio lation-of-publicpolicy claim on the theory that the jeopardy element was not me t. The Ninth

District sustained House’s assi gnment of error and reversed the trial court’s dismissal of her complaint. {¶ 8} The Ninth District determined that the trial court erred by con cluding that House could not satisfy the jeopardy element. The appella te court concludedS UPREME C OURT OF O HIO

4 that the statutory remedies contained in R.C. Chapter 4141 were insufficient to provide House with a meaningful opportunity to return to the po sition she had occupied prior to the adv erse employment action. {¶ 9} The Ninth District found that “[a] bsent adequate statutory reme dies, House must be allowed to pursue a public policy wrongful termin ation claim in order to avoid fostering an environment where employees face th e prospect of losing their jobs when they seek to obtain the benefits they ha ve earned under the law.” 2018-Ohio-443, 94 N.E.3d 599, ¶ 19. The appellate court reasoned that a decision to the contrary might have a chilling effect on the wi llingness of employees to report such violations.

II. Analysis {¶ 10} We accepted the following proposition of law: “That in a wrongf ul

termination action under Greeley v. Miami Valley [ Maintenance Contrs. ], 49 Ohio St. 3d 228 [552 N.E.2d 981] (1990), the jeopardy element is not met when statutes provide for the protection of the public policy, even when they provide no direct remedy for an employee herself.” 153 Ohio St.3d 1429, 2018-Ohi o-2418, 100

N.E.3d 446. A. Wrongful Termination in Violation of Public Policy {¶ 11} The employment-at-will doctrine, the rule that general or indef inite hiring is terminable at the will of either party for any cause or no cause, is the

traditional rule in Ohio. Collins v. Rizkana , 73 Ohio St.3d 65, 67-68, 652 N.E.2d 653 (1995). The tort of wrongful termination in violation of p ublic policy, also

known as a Greeley claim, is an exception to the employment-at-will doctrine. Greeley at 234. {¶ 12} In order for a plaintiff to succeed on a wrongful-termination-i nviolation-of-public-policy claim,January Term, 2020

5 a plaintiff must establish four elements: (1) that a clear publ ic policy

existed and was manifested either in a state or federal constit ution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under

circumstances like those involve d in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivat ed by conduct related to the p ublic policy (“the causation element”), and (4) the employer lacked a n overriding legitimate business justification for the dismissal (“the overriding-justification element”).

Miracle v. Ohio Dept. of Veterans Servs ., 157 Ohio St.3d 413, 2019-Ohio-3308, 137 N.E.3d 1110, ¶ 12; see Collins at 69-70. The clarity and jeopardy elements are questions of law to be determined by the court. Collins at 70. The causation and overriding-justification elements are, however, questions to be determined by the

finder of fact. Id

. B. Clarity Element {¶ 13} We note that neither House nor the appellants appealed the tria l court’s legal determination that House had met the clarity elem ent. According to the trial court, there is a clear public policy, manifested in the provisions of R.C. Chapter 4141, that employers should accurately report employees ’ pay and tips to the Bureau of Unemployment Com pensation. The a ppellate court d id not disturb

the trial court’s de termination on appeal. {¶ 14} While some may question whether the public policy identified by the trial court in this case is sufficient to establish the clarity element in light of this court’s recent opinion in Miracle , we do not address that matter in this decision, because the issue is not before this court. Therefore, we pres ume the clarity elementS UPREME C OURT OF O HIO

6 is satisfied and move on to the analysis of the jeopardy elemen t of House’s wrongful-discharge-in-viola tion-of-public-policy claim. C. Jeopardy Element {¶ 15} Under the jeopardy-element analysis, we determine whether dismissing employees under circ umstances like those involved in House’s dismissal would jeopardize the public policy expressed in R.C. Chapter 4141 that employers should accurately report employees’ pay and tips to t he Bureau of Unemployment Compensation. See Collins , 73 Ohio St.3d at 70, 652 N.E.2d 653.

We conclude that a dismissal under these circumstances does not jeopardize the public policy identified by the trial court. {¶ 16} The jeopardy-element analysis g enerally 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-pol icy 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 it is here, 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-inviolation-of-public-policy claim is necessary when remedies for statutory violations are included in the statutory scheme. Id. at ¶ 15 (“there is no need to recognize a common-law-action for wrongful discharge if there a lready exists a statutory remedy that adequately protects society’s interests”) . This is especially true “when remedy provisions are an essential part of the statu tes upon which the plaintiff depends for the public policy claim and when those re medies adequately protect society’s interest by d iscouraging the wrongful conduct .” Leininger v.

Pioneer Natl. Latex , 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 27. {¶ 17} House’s wrongful-termination-in-violation-of-public-policy clai m was based on multiple provisions i n R.C. Chapter 4141, specific ally R.C. 4141.20,January Term, 2020

7 4141.24, 4141.27, 4141.30, 4141.37, 4141.38, 4141.40, and 4141. 99. After reviewing R.C. Chapter 4141, it is apparent that the General As sembly has provided remedies that discourage employ ers from inaccurately reporting employees’ pay and tips to the Bureau of Unemployment Compensation (violating R.C. Chapter 4141) and that punish employers who fail to comply with the req uirements in R.C. Chapter 4141. For example, R.C. 4141.20(B) orders the director of Job and Family Services to assess a forfeiture to the employer, amounting to . 25 of 1 percent of the total remuneration reported by the employer, not less than $50 and no more than $1,000, for failing to properly file the quarterly contribution and wage report. Further, R.C. 4141.27 sets forth a detailed process by which th e director, through the attorney general, may institute a civil action against an e mployer who has failed to comply with the sections of R.C. Chapter 4141. Finally, R.C . 4141.99 provides that for various violations of R.C. Chapter 4141, the employer may be subjected to fines or criminal penalties. The question becomes whether thes e statutory remedies, which do not include a personal remedy for a dismisse d employee, adequately discourage the employer’s wrongful conduct and are s ufficient to protect society’s interests in ensuring employers accurately re port employees’ pay and tips to the Bureau of U nemployment Compensation. See Leininger , 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, at ¶ 27. {¶ 18} House argues that the remedies in R.C. Chapter 4141 are insuffi cient to protect her or society’s interests and to discourage wrongfu l conduct by an employer. She contends that th e public policy is jeopardized a nd a wrongfultermination-in-violation-of-public-policy claim is necessary be cause there is no personal remedy to protect employees who were dismissed after i nforming their employers of R.C. Chapter 4141 vi olations. We disagree. In th is circumstance, looking only at the public policy and R.C. Chapter 4141, a pers onal remedy is not necessary to discourage wrongful conduct by employers and the r emedies in the statute are sufficient to protect society’s interest in the pub lic policy that employersS UPREME C OURT OF O HIO

8 should accurately report employees’ pay and tips to the Bureau of Unemployment Compensation. {¶ 19} In addressing the jeopardy prong of the wrongful-termination-in

violation-of-public-policy tort , we have previously looked to s ee whether the statutory scheme contains a suffi cient personal remedy for the aggrieved employee. See Leininger at ¶ 14, citing Livingston v. Hillside Rehab. Hosp ., 79 Ohio St.3d 249, 680 N.E.2d 1220 (1997). However, in such instances, this court has focused only on the existence of a personal remedy for the employee in circumstances that involved public policies that prot ect substantial rights of the employee. See Wiles, 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526, at ¶ 17 (Fam ily and Medical Leave Act, 29 U.S.C. 2601 et seq.); Kulch v. Structural Fibers, Inc ., 78 Ohio St.3d 134, 677 N.E.2d 308 (1997) (Occupa tional Safety and Health Act (“OSHA”), 29 U.S.C. 651 et seq.); Pytlinski v. Brocar Prods., Inc. , 94 Ohio St.3d 77, 80, 760 N.E.2d 385 (2002) (OSHA); Leininger (age discrimination); Collins , 73 Ohio St.3d at 73, 652 N.E.2d 653 (sexual hara ssment and discrimination); a nd Bickers v. W. & S. Life Ins. Co. , 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201 (workers’ compensation). {¶ 20} The public policy identified by the trial court in this case, uncontested by the parties, is not like the public policies tha t this court recognized

in Kulch , Collins , Wiles , Leininger , and Bickers , which specifically protect employees. Instead, the public policy announced in this case p rotects a particular government interest: the accurate reporting of employees’ wages to the Bureau of Unemployment Compensation. The lack of a personal remedy in th e statutory scheme does not jeopardize the policy because the remedies cont ained in the statute sufficiently protect society’s i nterest and discourage employer s from engaging in the prohibited behavior. {¶ 21} But even assuming that we were to grant House’s remedy and orde r the appellees to pay damages, or were to hypothetically order H ouse’sJanuary Term, 2020

9 reinstatement, such a personal remedy may only discourage retal iation, i.e. termination, for confronting th e appellants about their failure to accurately report her wages. A personal remedy may not , however, be sufficient to prevent the public policy from being jeopardized. The appellants could still deci de not to pay into the unemployment-compensation fund, and the issue of the appellants ’ failure to comply with R.C. Chapter 4141 would still not be resolved. The existence of a wrongful-termination-in-violation-of-public-policy claim would not act as sufficient encouragement to ensure that employers accurately re port their employees’ pay and tips to the Bureau of Unemployment Compensat ion. As we have stated above, the mechanis m protecting the public policy i n this case is the statutory scheme enacted by the General Assembly, which is spec ifically aimed at ensuring that all employers comply with their statutory duties. Thus, the public policy stated in this case is not j eopardized by the lack of ei ther a personal remedy for employees like House or the existence of a wrongful-termina tion-in-violationof-public-policy claim in this circumstance. {¶ 22} While House may have sought to assert a claim based on a public policy protecting employees embodied in other statutes or admin istrative code sections, she did not raise any s uch claims. We must recognize that R.C. Chapter

4141 does not contain a whistleblow er provision and does not se rve to protect the employee. See Kaminski v. Metal Wire Prods. Co. , 125 Ohio St.3d 250, 2010- Ohio-1027, 927 N.E.2d 1066, ¶ 61 (“it is not the role of the co urts to establish their own legislative policies or to second-guess the policy choices made by the General Assembly”). Had the General Assembly wished to create substant ive rights for the employee in this case, it could have done so. Simply stated, t he public policy recognized by the trial court is sufficiently protected by the remedies in R.C. Chapter 4141. {¶ 23} Therefore, we hold that the remedies in R.C. Chapter 4141 are sufficient to protect the public policy requiring employers to accurately reportS UPREME C OURT OF O HIO

10 employees’ pay and tips to the Bureau of Unemployment Compensat ion and that the lack of a personal remedy for the employee does not jeopard ize the public policy. We conclude that House’ s dismissal does not jeopardiz e the public policy identified by the trial court and that House cannot satisfy the jeopardy element of her wrongful-termination-in-violation-of-public-policy claim.

III. Conclusion {¶ 24} We conclude that House has not met the jeopardy element of her wrongful-termination-in-violation-of-public-policy claim becaus e the remedies in R.C. Chapter 4141 are sufficient to protect society’s interest in the public policy that employers should accurately report employees’ pay and tips to the Bureau of Unemployment Compensation and th e lack of a personal remedy in R.C. Chapter 4141 for the dismissed employee does not jeopardize the stated public policy. Accordingly, we reverse the judg ment of the Ninth District Cour t of Appeals and conclude that the trial court pr operly dismissed House’s wrongful-termination-inviolation-of-public-policy claim. Judgment reversed.

O’C ONNOR , C.J., and F RENCH and D E W INE , JJ., concur.

K ENNEDY , J., concurs in judgment only.

S TEWART , J., dissents, with an opinion joined by D ONNELLY , J.

_________________ S TEWART , J., dissenting. {¶ 25} The majority concludes that the administrative remedies found i n R.C. Chapter 4141 sufficiently “ protect society’s interest in t he public policy that employers should accurately report employees’ pay and tips to t he Bureau of Unemployment Compensation and th e lack of a personal remedy in R.C. Chapter 4141 for the dismissed employee does not jeopardize the stated public policy.” Majority opinion at ¶ 24. I fail to see how the administrative remedies in R.C. Chapter 4141 adequately protect the public policy of ensuring a n employer’sJanuary Term, 2020

11 accurate and honest wage reporting without allowing a remedy fo r appellee, Christine House, and others like her, who may have been fired f or reporting this kind of employer misconduct. I therefore dissent from the majo rity’s conclusion that House cannot establish the jeopardy component of her claim for wrongful

termination in viola tion of public policy.

I. An Individual Reme dy for the Employee {¶ 26} For an employee to engage in conduct that furthers a public pol icy— either by exercising one’s right to engage in the policy (e.g., taking leave under the Family and Medical Leave Act (“FMLA”)) or objecting to an emplo yer’s violation of a policy (e.g., reporting vio lations under the Occupational Safety and Health Administration)—without the thr eat of retaliation discouraging that conduct, there must be a remedy available to the employee if an employer were to engage in a retaliatory discharge. See H. Perritt, Employee Dismissal Law and Practice , Section 7.07[A], at 7-126 to 7-127 (6th Ed.2018). 1 The employee’s remedy, whatever form it might take (e.g., a private right of action or an administrative appeal) and whatever relief mig ht be available (e.g., reinstate ment of employment, compensatory damages, or punitiv e damages), must be enough to o vercome the

threat of retaliation. See id. {¶ 27} The assertion by appellants, Bruce Iacovelli and Windward Enterprises, Inc., that the “jeopardy element is not met when s tatutes provide for the protection of the public po licy, even when they provide no direct remedy for an employee herself,” is a dubious one. A statutory remedial sche me that does not

1. This court adopted Ohio’s four-part framework for determinin g wrongful-termination-inviolation-of-public-policy claims from a law-review article wri tten by Professor Henry Perritt. See Collins v. Rizkana , 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995), citing H. Per ritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? , 58 U.Cin.L.Rev. 397, 398- 399 (1989). Since then, we have repeatedly turned to Professor Perritt for his interpretation and analysis of the various components of a wrongful-termination cl aim. See , e.g. , Wiles v. Medina Auto Parts , Inc., 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526, ¶ 14-15, and Pytlinski v. Brocar Prods. , Inc., 94 Ohio St.3d 77, 80, 760 N.E.2d 385 (2002), fn. 3.S UPREME C OURT OF O HIO

12 provide any remedy to an aggrie ved employee who was fired in co ntravention of a public policy would seem to fail, as a matter of course, to ade quately protect the public policy. {¶ 28} Indeed, until now, this court seemingly understood this concept . In the past, when examining whether statutory remedies adequately protected the public policy at issue, this court focused on the adequacy of t he remedies available to the individual employee. See Leininger v. Pioneer Natl. Latex , 115 Ohio St.3d 311, 2007-Ohio-4921, 875 N.E.2d 36, ¶ 33 (holding that the “jeo pardy element necessary to support a common-law claim is not satisfied, becau se R.C. Chapter 4112 adequately protects the state’s policy against age discrim ination in employment through the remedies it offers to aggrieved employees ” [emphasis added]); Wiles v. Medina Auto Parts , 96 Ohio St.3d 240, 2002-Ohio-3994, 773 N.E.2d 526, ¶ 15, 17 (finding no need to recognize a common-law wrongfultermination claim for an employee who experienced an adverse em ployment action after taking time off to care for ailing father because the emp loyee had “an alternate means of vindicating his or her s tatutory rights” by way of the FMLA’s remedial scheme, which provided the “ 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 ” [emphasis added]); Kulch v. Structural Fibers , Inc., 78 Ohio St.3d 134, 155, 677 N.E.2d 308 (1997) (court allowed em ployee to proceed on common-law wrongful-termination claim, with the lead opinion stating that the statutory “civil remedies set forth in R.C. 4113.52 ar e not adequate to fully compensate an aggrieved employee who is discharged, disciplined, or otherwise retaliated against in violation of the statute” [emphasis added ]); Collins v. Rizkana , 73 Ohio St.3d 65, 74, 652 N.E.2d 653 (1995) (availability of re medies under R.C. Chapter 4112, which prohibits sex ual discrimination, could not serve to defeat employee’s wrongful-discharge claim because those remedies, whi ch included equitable relief in the form of reinstatement and back pay, were not personallyJanuary Term, 2020

13 available to employee when her employer did not employ the requisite number of employees required to be consider ed an “employer” within the me aning of the statute). {¶ 29} The majority opinion distinguishes its decision in the present case from the past decisions cited above by explaining that the publ ic policy at issue in each of those cases protected a substantial right of the employ ee, whereas in the present case the public policy—requiring accurate reporting of employee wages— exists only to protect a particular governmental interest. Acc ording to the majority opinion, only when a substantial right of the employee is at st ake will the court “look[] to see whether the statut ory scheme contains a sufficie nt personal remedy for the aggrieved employee.” M ajority opinion at ¶ 19. The co urt should be wary of drawing this distinction. {¶ 30} Generally, governmental interests are those interests that impa ct the health, safety, and welf are of the community. State v. Cook , 83 Ohio St.3d 404, 417, 700 N.E.2d 570 (1998); see also Miami Cty. v. Dayton , 92 Ohio St. 215, 223, 110 N.E. 726 (1915). In order to protect these interests, gove rnments promulgate laws prohibiting certain conduct found to be harmful to society . Often, criminal and regulatory laws do not provide substantive rights to any si ngle individual but rather protect society at large. And although criminal and reg ulatory laws may discourage whatever conduct is prohibited by threatening the im position of fines and other penalties, many do not p rovide a personal remedy to a n employee who is fired for refusing to violate the law. {¶ 31} Following the majority opinion to its logical conclusion would foreclose an employee who is fired for refusing to violate the law from bringing a common-law claim for wrongful t ermination in violation of publi c policy. This could jeopardize important public policies at the heart of a nu mber of Ohio’s laws even if those public policies do not necessarily protect the ri ght of an individual employee.S UPREME C OURT OF O HIO

14 {¶ 32} For instance, imagine a scenario in which an employee of a chemical-manufacturing company is told by his supervisor to dum p toxic waste in the Ohio River. Knowing that thi s would violate a number of cr iminal and

environmental laws and could ha rm thousands of people, the empl oyee refuses. If the employee is fired for refusing to comply with his superviso r’s demand, according to the majority opinion, that employee would not be a ble to maintain a common-law wrongful-termination claim. When there is no privat e remedy for the wrongfully terminated employee, that employee, and others like him, are going to

have a difficult choice to make—break the law or be fired for n ot breaking the law. When the employee has some recourse against his employer for th e wrongful termination, this choice becomes much easier, and the employer might think twice before asking an employee to engage in illegal conduct in the f irst place. See Perritt, Employee Dismissal Law and Practice , Section 7.07[A], at 7-124 (“The central idea of the public policy tort is to create privately enforceable di sincentives for private employers to use their power in the workplace to undermine impo rtant public policies”). {¶ 33} It does not matter whether the public policy is intended to pro tect some right of the employee or is intended to protect a governme ntal interest, the same analysis applies to the jeopardy component—does the discha rge of an employee under the circumstances alleged by a plaintiff jeopard ize the public policy. See Collins , 73 Ohio St.3d at 70, 652 N.E.2d 653. Regardless of the type of public policy involved, one of the central questions underly ing the jeopardy component is whether a privately enforceable remedy for the agg rieved employee is needed to adequately protect the public policy. When the so urce of the public policy is a statute that contains a remedy for a wrongfully ter minated employee, recognizing a claim for wrongf ul termination in violation of pu blic policy may not be necessary. However, I can find no support in the law for th e majority’s

conclusion that it does not matte r whether an adequate personal remedy forJanuary Term, 2020

15 employees exists within the statute when the public policy prot ects only a governmental interest. This assertion appears to be created to justify the majority’s departure from this court’s jeopa rdy analysis in prior decision s. {¶ 34} However, even if the majority is correct in its assumption that this court treats public policies protec ting governmental interests differently than those protecting employee rights, the majority has failed to sufficie ntly explain why the public policy at issue here does not involve the protection of an employee right. “The fund out of which unemployment compensation is paid to emp loyees is represented entirely by compulso ry contributions on the part of employers and is in effect a tax on the privilege of doing business in Ohio.” Leach v. Republic Steel Corp., 176 Ohio St. 221, 223, 199 N.E.2d 3 (1964). T his court has explained that the purpose of the Ohio Unemployme nt Compensation Act, R.C. Cha pter 4141, and the funds created by the act “is to enable unfortunate employee s, who become and remain involuntarily unemploye d by adverse business and industr ial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.” (Emphasis omitted.) Id. ; see also Irvine v. Unemp. Comp. Bd. of Rev. , 19 Ohio St.3d 15, 17, 482 N.E.2d 587 (1985); Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs ., 73 Ohio St. 3d 694, 697, 653 N.E.2d 1207 (1995), quoting Salzl v. Gibson Greeting Cards, Inc. , 61 Ohio St.2d 35, 39, 399 N.E.2d 76 (1980) (“ ‘The [A]ct was intended t o provide financial

assistance to an individual who had worked, was able and willin g to work, but was temporarily without employment th rough no fault or agreement of his own’ ”). Contrary to the majority’s position, this court’s earlier case law shows that the public policy behind accurately reporting employee wages is meant to protect a substantial right of the employee—the right to receive his fair share of unemployment compensation—in the event of an employee’s termina tion through

no fault of his own.S UPREME C OURT OF O HIO

16 II. Inadequacy of St atutory Remedies {¶ 35} Without an individual remedy for the discharged employee, the statutory remedies contained in R.C. Chapter 4141 do not adequa tely protect against employers who purposefully underreport wages to avoid p aying their fair share of unemployment taxes. To begin, although R.C. 4141.99 s ubjects an employer to possible criminal penalties for certain violations of R.C. Chapter 4141, it does not—as the majority sugge sts—contain provisions that cr iminalize the underreporting of wages to avoid pa ying the requisite unemploym ent tax. Instead, R.C. 4141.99, along with R.C. 4141.20(B), imposes modest fines on an employer and individuals working for the e mployer who have failed to pro perly file a quarterly wage-earning report or pay required contributions to the unemployment

fund. See R.C. 4141.20(B) (imposing forfeiture of $50 to $1,000, which c an be waived by the director of job and family services pursuant to R .C. 4141.20(D)); R.C. 4141.99(C) (imposing a fine of $500 upon an employer or it s officer who fails to comply with the requirement s of R.C. 4141.38 “relating to th e making of reports or the payment of contributions to the unemployment compensatio n fund”). Given the mild penalties involved, it is not difficult to imagine a s cenario in which an unscrupulous employer might choose to forgo its legal obligatio ns by underreporting employee wages when the benefit outweighs the ri sk. If the allegations in House’s complaint are true, that appears to be w hat has happened

here. {¶ 36} Further, although R.C. 4141.27 per mits the director of job and family services, through the attorney general, to bring a civil action against an employer to recover unpaid contri butions, including interest, o nce liability has been determined pursuant to R.C. 4141.26 and the employer still refu ses to pay, this section does not penalize the pur poseful underreporting of wage s. Instead, it is a legal mechanism that the director may use to compel payment fro m a recalcitrant employer. See R.C. 4141.27; see also R.C. 131.03.January Term, 2020

17 {¶ 37} How the majority concludes that the provisions contained in R.C

. 4141.20(B), 4141.99, and 4141.27 serve as deterrents against wa ge-reporting

violations in and of themselves is perplexing. The procedures outlined in R.C. 4141.27 for recovering contributions are activated only “[i]f t he director of job and family services finds that * * * an employer subject to [R.C. C hapter 4141] * * * has failed to comply wi th such sections.” Id . The little word “if” is a big reason why House’s claim has met the jeopardy element under the facts of this case. None of the statutory remedies that t he majority finds adequately pr otect the public policy at issue here are even triggered unless, or until, a violation is made known to the director. It requires no stretch of the imagination to conclud e that often an employee will be the only one, other than the employer, to know of a violation. If employees know they can be terminated with no recourse for repo rting a potential violation or for cooperating with the Bureau of Unemployment Co mpensation to uncover a potential violation, it is highly unlikely that they will ever report or cooperate. In turn, employers ar e unlikely to ever be identifi ed and subjected to the administrative remedies for their wrongdoing. In light of the majority’s decision in this case, the General Assembly might as well amend R.C. 4141.2 7 to apply when “the director just so happens to discover” that an employer sub ject to R.C. Chapter 4141 failed to comply w ith the statute. {¶ 38} In essence, because employee reporting in this instance is nece ssary for the effective enforcement of the public policy, employees m ust be protected from retaliatory discharge either by remedies contained in the statutory provisions or by remedies in a common-law tort claim for wrongful terminat ion. III. Application of the Majority Decision to the Facts of this Case

{¶ 39} As the majority notes, the jeopardy-element analysis requires t he

court to determine whether dis missing House under the circumsta nces involved in this case jeopardizes the public policy expressed in R.C. Chapt er 4141. Without any meaningful analysis, the majority goes on to find that the circumstances underS UPREME C OURT OF O HIO

18 which House was dismissed woul d not jeopardize the public polic y requiring employers to accurately report wage and tip earnings. But a si mple application of the law to the alleged facts ex poses the majority’s error. {¶ 40} House alleged in her complaint t hat she was terminated from her job as a waiter at the Riverstone Tavern, where she had worked for over seven years, for confronting Iacovelli, her boss, about underreporting her w age and tip earnings to the Ohio Unemployment Commission’s Insurance Fund. If the a llegation is true,

Iacovelli’s conduct violated R.C . 4141.38, which provides that no employer shall fail to comply with R.C. Chapter 4141’s reporting requirements. {¶ 41} According to the complaint, afte r House was terminated, Iacovel li

contacted House and counseled he r to misrepresent to the Bureau of Unemployment Compensation the true reason for her termination. Specifically , as alleged by House, Iacovelli instructed her to state that she was terminate d for lack of work so that she might still be eligible for unemployment benefits. Th e complaint alleged that Iacovelli told House that he would pay her $150 every two weeks to make up for the reduction in unemployment benefits that she might recei ve due to his reporting violation. House declin ed to participate in the alle ged scheme and proceeded to bring an action for wrongful termination in violat ion of public policy. {¶ 42} These latter allegations are left out of the majority opinion. But they are extremely important because, to be eligible for unemploymen t benefits under the statute, employee-applicants cannot be found to have quit t heir employment without just cause or to have been terminated for just cause in connection with their work. R.C. 4141.29(D)(2)(a). When, however, an employee is te rminated for “lack of work,” that employee’s elig ibility is preserved. R.C. 4141. 29(D)(2)(a)(ii). Moreover, pursuant to the statute, an eligible applicant is ent itled to receive unemployment benefits in an am ount of up to 50 percent of the p erson’s average weekly wage, the calculation of which derives from the employee ’s wage as reported by the employer in its quarterly reports. R.C. 4141.3 0(B).January Term, 2020

19 {¶ 43} When considering these facts, it is unclear what the majority expected House to do. Had she kept silent about her employer’s reporting violation, she would not have received her full unemployment benefits in t he event of a nofault termination. Had House lied to the Bureau of Unemploymen t Compensation by stating that she was terminated for lack of work, she would have committed a fraudulent misrepresentation in order to obtain benefits—an act ion that carries its own fines and penalties under R. C. 4141.35. The same is true i f she had collected the payments her former employer offered her as hush money. See id .; see also R.C. 4141.31(A). {¶ 44} If the facts in the complaint are true, House did everything ri ght

under the circumstances. Not onl y did she attempt to discourag e unlawful behavior by confronting her employer about its reporting violations, but later, after being fired for her actions, she declined to engage in conduct akin t o fraud and bribery even though her unemployed status and diminished capacity to co llect unemployment benefits might hav e put pressure on her to do othe rwise. In light of

the circumstances in which Hous e was dismissed, I find the majo rity’s assurances

that the administrative remedi es in R.C. Chapter 4141 protect t he public from an employer’s wage-reporting violations entirely unconvincing. In my estimation, by refusing to recognize the necessity of a wrongful-termination c laim, the majority opinion does more to encourage employer underreporting than the statutory remedy provisions could ever do to discourage it.

D ONNELLY , J., concurs in the foregoing opinion.

_________________ Michael T. Conway & Company and Michael Terrance Conway, for appellee. The Bailey Law Firm and Steve C. Bailey, for appellants. The Gittes Law Group, Frederic k M. Gittes, and Jeffrey P. Varda ro, urging affirmance for amicus curiae Ohio Employment Lawyers Associatio n.S UPREME C OURT OF O HIO

20 Willis Spangler Starling and Jason E. Starling, urging affirman ce for amicus

curiae Ohio Association for Justice.

_________________