Pursuant to R.C. 4123.90, an employer may not “discharge, demote, reassign, or take any punitive action against an 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.” By virtue of the express language of R.C. 4123.90, courts have limited claims under this section to those employees who have actually filed a claim under the workers’ compensation act. If the employee was fired post-injury but prior to filing a workers’ compensation claim, courts have held that these employees are not protected by the statute and, therefore, the employer did not violate the statute.
Generally speaking, an employee who claims that he or she has been discriminated and/or retaliated against by his or her employer possesses a claim under Ohio statutes and may also possess a public policy claim. Recovery under a statutory claim may be limited by the statute and/or may not allow the right to a jury trial while a public policy claim provides an employee additional damages and a right to a jury trial.
Prior to 2007, courts were divided as to whether an employee possesses a public policy claim when the employee is retaliated for pursuing a workers’ compensation claim. In a 2007 case, Bickers v. W & S Life Ins. Co., 2007-Ohio-6751, the Supreme Court of Ohio held that R.C. 4123.90 “provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act.” Thus, the Court found that “an employee who is terminated from employment while receiving workers’ compensation has no common law action for wrongful discharge in violation of public policy.”
After the Bickers’ decision, courts held that an employee who was terminated prior to filing a workers’ compensation claim had no viable claim, either under the statute or a corollary public policy claim. Recently, in Sutton v. Tomco Machining, Inc., 2011-Ohio-2723, the Supreme Court of Ohio addressed the issue of “whether Ohio should recognize a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes, pursues, or testifies in any workers’ compensation proceeding.”
In the Sutton case, the employee injured his back on the job. After suffering the injury, the employee informed the employer’s president of the injury. Within one hour of informing the president, the president terminated the employee. Obviously, at that point, the employee had not filed a workers’ compensation claim.
The employee subsequently filed a lawsuit against the employer asserting a claim under R.C. 4123.90 and a public policy claim. The trial court eventually dismissed both claims. On appeal, the Second District Court of Appeals affirmed the trial court’s decision relating to the statutory claim while overruling the decision on the public policy claim finding that the employee possessed a public policy claim.
In addressing the public policy issue, the Supreme Court of Ohio, in a 4-3 decision, recognized that the statute “does not expressly prohibit retaliation against injured employees who have not yet filed, instituted, or pursued a workers’ compensation claim.” The majority further recognized that a the language of the statute creates a gap “for conduct that occurs between the time immediately following injury and the time in which a claim is filed, instituted, or pursued.”
The majority found that the legislature did not intend to leave this gap because leaving this gap is at odds with the purpose of the anti-retaliation provision. The majority, therefore, held that “R.C. 4123.90 expresses a clear public policy prohibiting retaliatory employment action against injured employees, including injured employees who have not yet filed, instituted, or pursued a workers’ compensation claim.” As such, Ohio “now recognizes a common-law claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding.” The Court’s ruling seems to limit the availability of a public policy claim to those employees who fall into the gap created by the statute.
Even though the majority held that Ohio now recognizes a public policy claim for employees who have not yet filed a claim, the majority held that these employees are limited to the remedies provided by R.C. 4123.90. Thus, an employee pursuing a public policy claim is limited to reinstatement plus back pay and potential attorney fees.
In practice, employers must be cognizant of recent workplace injuries suffered by its employees when an employee is being considered for termination even if that employee has not yet filed a workers’ compensation claim. While an employee who suffers a workplace injury is not insulated from termination, being able to articulate through documentation or records a viable reason for the employee’s termination that bears no relation to the workplace injury would be helpful in avoiding claims.
If you would like a copy of the full opinion or if you have any other questions regarding Employment Practices Liability, feel free to contact one of our practice area attorneys.