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WC Retaliation: Exception To The 90 Day Notice Requirement under the Ohio Worker’s Compensation Act

| Apr 24, 2013 | Practice Areas, Workers' Compensation Retaliation |

As the attorneys at The Spitz Law Firm know, a discharged employee must notify his or her former employer within 90 days of his or her termination of his or her intent to bring a claim for retaliatory discharge under Ohio’s Worker’s Compensation Act. In a recent decision, however, the Supreme Court of Ohio recognized a limited exception to this general rule. In Lawrence v. Youngstown, the Supreme Court held that a court may delay the running of the 90 day time period if the employee did not know he or she was terminated “within a reasonable time” following the adverse employment action.

In Lawrence, the plaintiff, Keith Lawrence, worked for the defendant, the City of Youngstown. The City suspended Lawrence on January 7, 2007. Two days later, on January 9, 2007, the City placed a letter in Lawrence’s personnel file indicating that he had been terminated. The City also purportedly sent the letter to Lawrence by regular U.S. mail. However, the City never sent the letter to Lawrence by certified mail or delivered it to Lawrence in person. Lawrence claimed he never received the letter and did not learn of his termination until January 19, 2007.

Lawrence’s attorney sent a letter to the City on April 17, 2007, notifying it of Lawrence’s intention to bring a lawsuit against the City for retaliatory discharge based on Lawrence’s filing of several Worker’s Compensation claims while he was employed by the City.

Under Ohio law, “[n]o employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.” Additionally, a claim for retaliatory discharge based on the employee’s filing of a Worker’s Compensation claim is time-barred “unless filed within one hundred eighty days immediately following the discharge, demotion, reassignment, or punitive action taken, and … unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge, demotion, reassignment, or punitive action taken.”

In Lawrence, the trial court held that the 90 day time period ran from January 9, 2007 to April 9, 2007. Consequently, the court held that Lawrence’s notification was eight days late and thus untimely. The appellate court agreed with the trial court.

On appeal, the Supreme Court held:

R.C. 4123.90, when viewed in conjunction with R.C. 4123.95 and read in pari materia [together], places an implicit affirmative responsibility on an employer to provide its employee notice of the employee’s discharge within a reasonable time after the discharge occurs in order to avoid impeding the discharged employee’s 90-day notification obligation under R.C. 4123.90. [Emphasis added.] A reasonable time for an employer to inform an employee of a discharge is an inquiry dependent on the facts of each situation. A delay of several days would not prevent the 90-day period for the employer to receive notification from the employee from commencing to run on the discharge date.

In other words, as long as an employer communicates the discharge to the employee (e.g., by personal notification, hand delivery of notice, or a certified letter) within a reasonable time, the 90 day time period still would begin to run on the actual discharge date.

The Supreme Court further held that “prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence.”

Applying this exception to the facts of Lawrence, the Supreme Court held that the City did not prove that it notified Lawrence of his termination within a reasonable time. Therefore, the Court held that Lawrence’s notice to the City of his intention to bring a retaliatory discharge claim was timely.

If you think that your employer has discriminated against or terminated you because you filed a Worker’s Compensation claim, call the attorneys at The Spitz Law Firm today for a free and confidential initial consultation.

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. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.

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