Ohio Revised Code 4123.90 prohibits an employer from taking punitive action against an employee for filing or pursuing a workers' compensation claim. But what if the retaliatory action takes place after an injury but before a claim is actually filed? In Sutton v. Tomco Machining, Inc., Slip Op. No. 2011-Ohio-2723, the Ohio Supreme Court recognized a common-law tort for wrongful discharge in violation of public policy when an employee suffers retaliatory employment action after an on-the-job injury but before the claim has been filed.

DeWayne Sutton, a Tomco employee for two and a half years, injured his back at work and immediately reported it to his supervisor, Tomco President Jim Tomasiak. Within an hour of the reported injury, Tomasiak fired Sutton without providing a reason. Tomasiak did inform Sutton that he was not being fired for his job performance, work ethic or breaking a work rule. Sutton filed a claim and then complied with the procedural requirements of Revised Code (R.C.) 4123.90, providing a letter within three months alleging unlawful retaliation and filing the lawsuit within six months.

The Ohio Supreme Court analysis utilized the elements of the common-law tort for wrongful discharge in violation of public policy. The Court emphasized the first two elements: (1) "clarity" -- a clear public policy apparent in a constitution, statute or administrative regulation; and (2) "jeopardy" -- dismissing an employee under these circumstances would jeopardize the public policy. (Procedurally, the remaining elements of "causation" and "overriding-justification" were not at issue.)

The statutory language of R.C. 4123.90 satisfied the clarity element. To permit retaliation against employees during the "gap" after the work injury but before the claim was filed would jeopardize the policy expressed by 4123.90 by creating a "footrace between firing and filing." This satisfied the jeopardy element.

Although recognizing a common-law tort, the Supreme Court denied full tort damages, importantly limiting the remedies to those available under R.C. 4123.90 (reinstatement, back pay and attorney's fees). Sutton was a four-to-three decision with the dissenters emphasizing that workers' compensation was a statutory scheme created by the legislature rather than derived from common law. Therefore, creating a common-law tort was inappropriate.