Employees are protected in Ohio by O.R.C. 4123.90 from being retaliated against by their employers for filing or pursuing worker’s compensation claims. Employees who wish to pursue a retaliatory discharge claim must place the employer on notice of a claimed violation within 90-days immediately following the discharge, demotion, re-assignment, or punitive action taken. The Supreme Court of Ohio in Lawrence v. City of Youngstown, Slip Opinion No. 2012-Ohio-4247, recently addressed the issue of when an employee became aware of his “discharge” such that he knew he had 90-days to place his employer on notice of a possible retaliatory discharge claim. The Supreme Court in Lawrence found that generally speaking the word “discharge” under O.R.C. 4123.90 means the date the employer issued the notice of termination, and not the date the employee received the notice or the date that he or she might have a claim for a retaliatory discharge. However, The Supreme Court in Lawrence created a very limited exception to this general rule when: (1) an employee does not become aware of his discharge within a reasonable time after the discharge occurs; and (2) the employee could not have learned of the discharge within a reasonable time in the exercise of due diligence.

When these two conditions are met, the 90 day time period for the employee to put the employer on notice of an alleged retaliatory discharge claim begins to run on the earlier of the date that the employee actually became of aware of the discharge, or the date the employee should have become aware of the discharge.

The employee in Lawrence was employed by the City of Youngstown. Mr. Lawrence was suspended from the city without pay. Two days later the city terminated his employment. In the file, the city prepared a letter, dated the same date of the termination advising Mr. Lawrence of his termination. Copies of the letters were sent to various city offices and departments, as well as Mr. Lawrence’s union. Very importantly a certified copy of this letter was not sent to Mr. Lawrence, and he later asserted that he did not learn of his discharge until almost 6 weeks later. Mr. Lawrence’s attorney then sent (beyond the 90-days of the actual discharge date) a letter to the city advising of Mr. Lawrence’s intentions to bring an action for a retaliatory discharge under O.R.C. 4123.90. Mr. Lawrence later filed a Complaint against the city in the Court of Common Pleas. After the trial court and the Court of Appeals agreed with the city that Mr. Lawrence sent his 90-day notification letter outside of the 90-day requirement following his discharge, the matter was appealed to the Supreme Court of Ohio.

The Supreme Court reversed the decision of the trial court and Court of Appeals, and found in favor of Mr. Lawrence. The Court concluded that there is an implied responsibility on the part of an employer to provide its employees with notice of their discharge within a reasonable time frame after the discharge occurs. This is so that discharged employees can still comply with the requirement to provide that same employer with notification of a possible retaliatory discharge within the mandatory 90-days. The Court found its conclusion requiring an employer to provide a reasonable and prompt notice of a discharge to an employee is not overly burdensome nor is it unreasonable.

This decision from The Supreme Court in Lawrence creates a limited exception to the rule that employees must notify their employers of their intentions to possibly pursue a retaliatory discharge claim within 90-days of their discharge date. Only in the limited circumstance of when the employee: (1) does not become aware of the fact of his/her discharge within a reasonable time after the discharge occurs; and (2) the employee could not have learned of the discharge within a reasonable time frame in the exercise of due diligence, will the 90-day notice requirement be expanded. In order to prevent situations whereby the 90-day notice requirement can be expanded, employers when making personnel decisions in the context of employees who also have worker’s compensation claims should always follow up with notice of the discharge via a certified letter to the employee. This should occur as a follow-up to discharges performed face-to-face, via a phone conversation, or even an e-mail. Even in situations where employees “refuse to sign” termination paperwork, a certified letter should immediately follow to the employee notifying him/her of the discharge. Taking these additional steps can prevent the employee from exercising this limited expansion to the 90-day rule.

If you would like a full copy of the opinion, or if you have any other questions related to the matters of retaliatory discharges, please feel free to contact one of our Workers’ Compensation or Employment and Practices Liability Practice Group members.

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