Ohio Supreme Court Extends Workplace Injury Retaliation Claim Protections
(June 2011) - By a narrow 4-3 majority, the Ohio Supreme Court ruled on June 9, 2011, that an injured employee may sue his former employer for a retaliatory firing after reporting a workplace injury, but before pursuing a claim for workers’ compensation. The Court in Sutton v. Tomco Machining, Inc., provided a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action in the time between reporting the injury to the employer and filing a workers’ compensation claim.
Under Ohio Revised Code Section 4123.90, employers are prohibited from taking retaliatory action—defined as discharging, reassigning, demoting, or taking any other punitive action—against an employee for pursuing the benefits associated with workers’ compensation. However, the text of R.C. 4123.90 does not expressly prohibit retaliation against injured employees who have not yet filed, instituted, or pursued workers’ compensation claims.
Noting this gap in coverage, the Court reasoned that the Ohio General Assembly did not intend to create a situation in which an employer could permissibly retaliate against employees who may later pursue workers’ compensation claims; such a situation contradicts the basic purpose of the antiretaliation statute, which is to enable employees to freely exercise their rights without fear of retribution. The plaintiff in Sutton brought a common law claim for wrongful discharge in violation of the public policy of R.C. 4123.90, and the Court held that he could indeed raise this claim.
Nevertheless, the Court made clear that despite the provision of a common law remedy under these specific circumstances, the injured employee is not entitled to the full panoply of remedies typically available under non-statutory actions. Instead, the plaintiff may only seek the remedies specifically outlined in R.C. 4123.90. R.C. 4123.90 requires that an injured worker provide written notice to the employer within 90 days of the “retaliatory conduct,” in this case discharge, and that a lawsuit be commenced within 180 days of the retaliatory conduct. If you receive written notice from an injured worker within his or her rights under R.C. 4123.90, immediately contact attorney Gust Callas at (330) 456-8341. The full text of the decision is available at: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-2723.pdf
