Best Ohio Worker’s Compensation Retaliation Lawyer Answers: Should I wait until I am awarded unemployment before suing my employer? Can my employer use an unemployment decision against me in a wrongful termination lawsuit? Do I need a Worker’s Compensation attorney and an employment retaliation attorney?
As our employment law attorneys, have previously blogged about, your employer cannot terminate you because you filed for Workers’ Compensation. (See What Can I Sue For If I’m Fired For Filing For Work Comp?; WC Retaliation: Can I Be Fired For Not Taking a Drug Test?; Worker’s Comp Retaliation – YouTube). This is because The Ohio statute which protects employees from Workers’ Compensation retaliation is R.C. § 4123.90, states, in part, “No 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.” It is extremely important to note that R.C. § 4123.90 only give the employee one hundred and eighty days to file suit, and they have to give their employer ninety days notice of their intent to file suit. Otherwise “the action shall be forever barred.”
If you only have 90 days to give notice, and 180 days to file suit, then the big question is when does the clock start to tick? Typically, in an employment discrimination lawsuit, employment law lawyers talk about having 90 days from an adverse employment action, which is usually termination. But what about everything that happens earlier than the 90 days? For example, in a recent Texas Court of Appeals case, Raul Rivas v. Southwest Key Programs, Inc., the employee was injured on the job on April 4, 2010 and filed for unemployment. When the employee returned to work on August 24, he was given a hard time by his employer because he had filed for Worker’s Compensation. He was then suspended on September 19, 2010 and terminated on September 24, 2010. The employee filed suit exactly two years later on September 24, 2010. (Note that in Texas an employee has two years to file suit, but in Ohio you only have 180 days!) The employer claimed that the employee filed for unemployment on September 19, 2010, so he filed suit too late.
There are two important issues here. First, can the employee’s Unemployment submission be used against him? Second, if the employee files a lawsuit exactly 2 years after he is fired (or in Ohio, exactly 180 days after he is fired), can the court consider the hostile work environment prior to the termination?
On the first issue, there was a conflict regarding the day the employee was terminated. The employee swore in an affidavit that he was terminated on September 24, 2010. The employer introduced evidence from Unemployment that the employee was terminated earlier. However, in this case the employer filed a motion for summary judgment, meaning they wanted the court to decide, and not the jury. The Court had to see if there was a really a question regarding the date of termination, if there was, it was for the jury to decide. The Court looked at the conflicting evidence and saw the affidavit from the employee and the Unemployment record that had a different date. Because the Unemployment record did not contain a sworn statement from the employee, the Court found there was a fact issue for the jury to decide. (See our attorney blog on this point too: Employment Law: Do I Still Have A Wrongful Termination Claim If My Unemployment Was Denied?)
On the second issue, the employee claimed hostile work environment. Since he filed suit more than two years after the hostile work environment could have taken place, his employer asked the court for summary judgment on its defense of statute of limitations, i.e. because it happened too long ago. However, the court explained “for limitation purposes, it does not matter that some of the specific acts creating the hostile work environment fall outside the statutory time period, ‘[p]rovided that an act contributing to the claim occurs within the filing period….’” This is also known as the “continuing violation doctrine.” The continuing violation doctrine in Ohio was explained by Tenth Circuit Court of Appeal in Chapa v. Genpak:
Under the “continuing violation” theory, which is recognized in Ohio Adm.Code 4112–3–01(D)(2), “[i]n cases of recurring or continuing violations, the filing period begins to run anew with each new discriminatory act or with each new day of the continuing violation.” “The continuing violation theory has been applied to cases where (1) a longstanding and demonstrable policy of discrimination exists, or (2) some evidence of present discriminatory activity giving rise to a claim of a continuing violation exists.” Ohio Civ. Rights Comm. v. Triangle Real Estate Servs., Inc., 10th Dist. No. 06AP–157, 2007–Ohio–1809, ¶ 22. Courts have recognized only two narrow exceptions of continuing violations that would toll the running of the statute of limitations: (1) an ongoing series of discriminatory acts; and (2) a long-standing policy of discrimination. Dendinger v. Ohio, 207 Fed.Appx. 521, 526 (6th Cir.2006), citing Sharpe v. Cureton, 319 F.3d 259, 266–67 (6th Cir.2003).
The Texas court found that the employer failed to prove that there was no genuine issue of material fact that no event took place on September 24, 2010 related to the hostile work environment claim. Thus the hostile work environment claim could continue under the continuing violation doctrine.
In the end, the employee did get to move forward with his lawsuit. Even though the employee got over that first hurdle, this case goes to show how important it is in any case to call the right attorney to make sure you do not wait too long to file a lawsuit.
Being hurt on the job is covered by Ohio’s Workers Compensation laws. Those laws protect the employers from getting sued in exchange for the benefits provided the employees. Additionally, it is plainly unlawful for employers to block access or attempt to dissuade employees from filing a WC claim. Employers will also be strictly liable for retaliating against employees that file a Work Comp claim. Such illegal retaliation includes being demoted, wrongfully disciplined, denied wages, or wrongfully terminated. If you have been fired or wrongly treated after filing a WC claim, then the best thing you can do is call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting Ohio employees from retaliation after filing a Worker’s Compensation Claim.
Disclaimer:
The materials available at the top of this Worker’s Compensation Claim page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I …?”, “Am I …?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to Worker’s Compensation retaliation questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney Brian Spitz, or any individual attorney.