A thorn in the side of many Ohio employers is the claim for wrongful termination in violation of public policy. The basic concept of wrongful termination in violation of public policy is an exception to “termination at will,” in that employers cannot terminate an at-will employee if the termination would violate “public policy.” There are obvious violations of public policy such as terminating an employee who reports tax fraud to the IRS, or reports an employer’s criminal law violation to police. But other potential claims are less obvious. It is these less obvious ones that often show up in complaints and leave employers vulnerable.

In Sutton v. Tomco Machining, Inc., Slip Opinion No. 2011-Ohio-2723, June 9, 2011, the Supreme Court of Ohio expanded these claims. The Court ruled that R.C. 4123.90, the state law that prohibits employers from discriminating against employees for filing workers’ compensation claims, expresses a clear public policy against the retaliatory firing of injured employees, including those who are fired before they file a workers’ compensation claim.

DeWayne Sutton was injured on the job at Tomco Manufacturing Co. Within an hour of reporting his injury to his employer, Sutton was terminated. Sutton could not pursue a claim under R.C. 4123.90 because he had not yet filed a workers’ compensation claim.

Because the statute did not offer protection for an employee who was terminated after being injured, but before the employee could file a workers’ compensation claim, the Court found there was an obvious gap that needed to be filled. Therefore, Ohio now recognizes a common law wrongful termination of public policy claim where an employee is fired after reporting a workplace injury, but before the filing of a workers’ compensation claim related to that injury.

The Court concluded that because Sutton did not have a remedy available under R.C. 4123.90, he would be allowed to pursue his common law wrongful discharge claim.  The Court put it succinctly:

It is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims.

In remanding the case to the lower court, the Ohio Supreme Court noted that Sutton was not home free. To prevail on his claim, Sutton still must prove that his discharge was retaliatory, and that his employer lacked an overriding business justification for firing him.

The Court also limited Sutton’s remedies. While a wrongful termination in violation of public policy generally would allow an employee to recover a full panoply of remedies, including punitive damages, the Supreme Court here limited Sutton’s remedies to only those provided in R.C. 4123.90. He could be awarded reinstatement, back pay (with an offset for any workers’ compensation payments) and attorneys’ fees, but no punitive damages.

Unclear from the Court’s decision is whether the same 90-day notice requirement, and the 180-day statute of limitations provided in R.C. 4123.90, will apply to this new common law claim.  What is now clear is that an employer that terminates an injured employee before the filing of a related workers’ compensation claim will no longer be insulated from potential liability.

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