The anti-retaliation provision of the Ohio workers’ compensation statute, R.C. 4123.90, does not extend protection to an employee who is terminated before he or she files, institutes or pursues a workers’ compensation claim. In a 4-3 decision issued last week, Sutton v. Tomco Machining, Inc., the Ohio Supreme Court held that, notwithstanding the absence of specific statutory protection, Ohio recognizes a common-law tort for wrongful discharge in violation of public policy when an injured employee suffers a retaliatory employment action after an on-the-job injury but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding.
The employee (Sutton) injured his back on the job and notified the president of the company of the injury. The employee was terminated within one hour of notifying the president of the injury. The president did not provide a reason for the termination, but did state the action was not because of the employee’s work ethic or job performance or because the employee had violated any company work rule or policy.
The employee filed suit against the company alleging that the company fired him to preclude a workers’ compensation claim and to avoid higher workers’ compensation premiums. He asserted a claim for unlawful retaliation under R.C. 4123.90 and a tort claim for wrongful discharge in violation of public policy. The trial court dismissed the case. The court of appeals affirmed dismissal of the employee’s claim under R.C. 4123.90, but reversed the dismissal of the public policy claim. The Ohio Supreme Court accepted the company’s appeal of the wrongful discharge issue.
The Court acknowledged that R.C. 4123.90 does not expressly prohibit retaliation against injured workers who have not yet filed, instituted or pursued a workers’ compensation claim. However, the statute does expressly prohibit retaliation against injured workers who have filed, instituted or pursued a workers’ compensation claim.
The Court noted that a “gap exists” in the statute for conduct that occurs between the time immediately following an injury and the time in which a claim is filed, instituted or pursued. The Court found that although the statutory scheme enacted by the Ohio General Assembly did not specifically protect employees like Sutton, the legislature’s intent was not to “create a footrace” that would allow an employer to avoid liability by quickly terminating an employee before he or she filed a workers’ compensation claim. The Court cited the purpose of the workers’ compensation statute’s anti-retaliation provision, to enable employees to freely exercise their rights without fear of retribution from their employers, in support of its determination that there was a clear public policy to protect employees who, like Sutton, have been injured on the job, even though the termination occurred prior to the filing of a workers’ compensation claim.
Because this case involved an infrequent factual scenario, it is not likely to result in a flood of claims against employers; however, it is important for employers to be aware of this potential liability when taking employment actions following an employee’s on-the-job injury. The good news for employers is that the Court determined that the remedies available to an employee that successfully pursues such a wrongful discharge public policy claim are limited to those remedies available to an employee under R.C. 4123.90. When an employee suffers a retaliatory employment action in violation of R.C. 4123.90, the employee’s damages are limited to reinstatement with back pay (if the employee was terminated), or an award of lost wages, and an award of reasonable attorneys’ fees.