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Imagine a scenario where an employee, James, is working with a manufacturing company for 5 years.  During that time, James has regularly received pay raises and received good performance reviews.  One day at work, James hurts himself and as a result, informs his boss of the injury.  After James reports the injury to his boss, he is terminated because the company does not want to deal with any workers’ compensation claims.  Can an employer terminate an employee after they are injured but before they file a claim with the Ohio Bureau of Workers’ Compensation (“BWC”)?

 

A Gap in the Law

Prior to a case called Sutton v. Tomco Machining Inc.the firing in the scenario above may have been legal.  That is because before Sutton there was a widespread belief that the Ohio Workers’ Compensation Retaliation statute (R.C. 4123.90) was the only means of protection for employees who suffer workplace injuries.  Since R.C. 4123.90 only applies to employees after they had filed a claim with BWC, employees who were terminated before having an opportunity to do so were out of luck.

 

Filling the Void

However, in Sutton, the Ohio Supreme Court recognized that there was a gap created by the language of R.C. 4123.90 that allowed employers to terminate employees after they suffer an injury at work but before they filed a claim with BWC, which allowed employers to avoid a rise in BWC premiums among other things.  After identifying that gap, the Ohio Supreme Court recognized a common law claim of wrongful termination against public policy to fill this gap.  In its ruling, the Court stated the following:

“The phrase “[a]ny such employee” is a limitation on the class of people that can avail itself of the remedies set out in R.C. 4123.90. By its express terms, R.C. 4123.90 does not apply to Sutton or others who experience retaliatory employment action after being injured but before they file, institute, or pursue a workers’ compensation claim. Consequently, a claim for retaliatory discharge in those circumstances is not cognizable under the statute. It is precisely this reason that Sutton’s statutory claim failed. Therefore, R.C. 4123.90 plainly does nothing to discourage the wrongful conduct that Sutton alleges…

… Ohio recognizes 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 or pursues a workers’ compensation proceeding.”

Sutton v. Tomco Machining, Inc., 2011-Ohio-2723, ¶¶ 27-28, 129 Ohio St. 3d 153, 161, 950 N.E.2d 938, 946-47

 

Proving the Case

In closing, the Court went on state that in order to bring a claim for wrongful termination in violation of public policy as it relates to R.C. 4123.90, the employee must show that the adverse employment action was retaliatory.  The most common adverse employment action is being terminated from a job.  Determining if the adverse employment action is retaliatory is extremely fact-intensive, so having the aid of an employment law attorney is recommended. If you or someone you know feels as though they may have a claim for wrongful termination against public policy or was terminated after being hurt at work, contact me and schedule a free initial consultation!

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James J. Hux is the Owner and Sole Attorney at Hux Law Firm, LLC. His practice areas include employment discrimination, personal injury, and general civil litigation throughout the State of Ohio.