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When Must an Employee Provide Notice of His or Her Intent to File a Lawsuit for Workers’ Compensation Retaliation in Ohio?

On Behalf of | Jan 3, 2013 | Retaliation, Workers' Compensation Retaliation |

As employment law attorneys, we are often asked this question. Common conceptions of fairness dictate that it should be illegal for an employer to terminate an employee for filing a Workers’ Compensation claim after the employee is injured on the job.  For this reason, many people know that it is illegal in Ohio for an employer to fire or otherwise retaliate against one of its employees for exercising their rights under Ohio’s Workers’ Compensation laws.  Most people, however, do not know that Ohio’s statute prohibiting such retaliation, R.C. § 4123.90, requires that employees who are retaliated against for filing a Workers’ Compensation claim must provide their respective employer with notice that he or she plans to file a Workers’ Compensation Retaliation lawsuit within 90 days of the retaliatory action.  This is commonly referred to by employment attorneys as R.C. § 4123.90’s “Notice Requirement,” and failing to provide an employer with notice within 90 days can completely prevent an employee from being able to bring his or her Workers’ Compensation Retaliation lawsuit.

Over the years, numerous lawsuits have questioned precisely when the R.C. § 4123.90’s 90 day Notice Requirement time-period begins to run.  Several Ohio Courts have held that the 90 days strictly begins on the day that the aggrieved employee was terminated, while others have held that the 90 days begins on the day that the employee learns that he or she was terminated.  The difference between these two concepts may seem tedious, but, being that it can determine whether or not an individual’s lawsuit may be properly filed, the Ohio Supreme Court recently weighed in on the subject.

In Lawrence v. City of Youngstown, the Ohio Supreme Court addressed a situation in which the retaliated against employee was “fired” by his employer on January 9, 2012, but the employee did not learn of his termination until six weeks after the fact.  More often than not, employers are diligent to ensure that their employees learn of their termination, but the employer, in Lawrence, sent an uncertified letter to its employee after suspending him from work.  The employee did not receive his termination letter and simply believed that he was suspended from work, until he inquired into his employment status six weeks after being suspended.

 As one can imagine, the employee in Lawrence provided his employer with notice of his intent to bring a Workers’ Compensation Retaliation lawsuit within 90 days of the date that he learned that he was terminated, but after 90 days from the date that his employer actually decided to terminate him. The Ohio Supreme Court ultimately sided with the employee and created an exception to R.C. § 4123.90’s 90 day Notice Requirement in situations in which employers do not provide their employees with notice that they have been terminated within a “reasonable time” after the decision to terminate.  Of course, precisely what constitutes a “reasonable time” period was not defined by the Ohio Supreme Court, so employment law attorneys can expect this new decision to open the door to large amounts of litigation over what precisely constitutes a reasonable period of time for an employer to notify an employee of his or her termination.  As a side note to employers, the Lawrence decision at least implicitly states that sending a certified mail notice to terminated employees can assure that the “I did not know I was terminated” excuse cannot be used.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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