Ohio Employment Intentional Tort Statute - Held Unconstitutional
*Note: See blog archive from 9-25-2007 regarding Barry A.E. Steel, where the Cuyahoga County Trial Court held to the contrary, that statute was constitutional. However, the Court of Appeals in Barry A.E. Steel has reversed that Trial Court decision. The Barry case now also stands for the proposition that the employment intentional tort statute is unconstitutional.
Kaminski v. Metal & Wire Products,(March 18, 2008), Columbiana County App. No. 07-CO-15. READ THE CASE
HOLDING OF THE COURT:
Pursuant to the Ohio Supreme Court’s holdings in Brady … and Johnson … and consistent with Sections 34 and 35, Article II of the Ohio Constitution, we must conclude R.C. 2745.01 is unconstitutional.
Because of its excessive standard of requiring proof that the employer intended to cause injury, “it is clearly not ‘a law that furthers the “*** comfort, health, safety and general welfare of all employee[e]s.”’ Johnson, 85 Ohio St. 3d at 308, quoting Brady, 61 Ohio St.3d at 633, quoting Section 34, Article II of the Ohio Constitution.
Additionally, “because R.C. 2745.01 is an attempt by the General Assembly to govern intentional torts that occur within the employment relationship, R.C. 2745.01 ‘cannot logically withstand constitutional scrutiny, inasmuch as it attempts to regulate an area that is beyond the reach of constitutional empowerment.’” Id., quoting Brady, 61 Ohio St.3d at 634.
POST EDITOR'S COMMENTS:
As anticipated, the issue of the constitutionality of the employment intentional tort statute is far from decided. The above decision holds that Brady prevents the Ohio Legislature from enacting laws in the field of employment intentional torts.
Our reading of Brady is that The Ohio Supreme Court held that the General Assembly may not impose upon the common law EIT as such claims did not occur within the scope of employment. However, recently in Penn Traffic Co. v. AIU, (2003) 99 Ohio St.3d 227, the Ohio Supreme Court held that an EIT does, in fact, arise out of employment and occur during the course of employment. The above decision does not seem to interpret the Brady decision in this manner.
Rather, the Court has held that because of Brady, an employment intentional tort is not within the province of the legislature. It is our understanding that the statute that Brady was dealing with was one enacted within the confines of the workers' compensation statutes. As such, because the intentional tort was deemed to not arise within the employment relationship, the statute was beyond legislation within the context of workers compensation. The current employment intentional tort statute is not enacted within the workers compensation statutes.
See our prior post from October 4, 2007 WILL THE NEW EMPLOYMENT INTENTIONAL TORT STATUTE SURVIVE CONSTITUTUIONAL SCRUTINY, wherein we previously noted the following:
The General Assembly is charged with enacting laws in furtherance of the "comfort, health, safety and general welfare of all employees." In creating a monopolistic workers' compensation system, they have done that and tipped the scales in favor of employees in order to allow compensation. It would appear that the General Assembly also has the authority to enact a statute that deals with tort claims between those same parties (employers/employees)in order to balance those same and competing interests.
It is noted that previously, in Brady, The Ohio Supreme Court held that the General Assembly may not impose upon the common law EIT as such claims did not occur within the scope of employment. However, recently in Penn Traffic Co. v. AIU, (2003) 99 Ohio St.3d 227, the Ohio Supreme Court held that an EIT does, in fact, arise out of employment and occur during the course of employment. If this is true, then Brady may no longer be an obstacle for the Court in upholding R.C. 2745.01. For in Penn Traffic, the Court has acknowledged the General Assembly's right to legislate the EIT as they have those rights within the employment context.
Finally, if the less stringent standards contained in the new statute do not create an "insurmoutable obstacle to victims" of employment intentional torts, then there would appear to be a sufficient basis to find that the new R.C. 2745.01 is, indeed, constitutional.
The decision in Kaminski clearly states that the standard remains too high. Indeed, the 7th District reads the new statute as, in fact, creating an insurmountable burden on employees and creating an illusory cause of action.
The Ohio Supreme Court will likely be faced with this issue in the near future.
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