Ohio Supreme Court Creates A Limited Exception to Limitations Period for Workers’ Compensation Retaliation Claims

Yesterday, the Ohio Supreme Court created a limited exception to the 90 day deadline which employees have to raise a workers’ compensation retaliatory discharge claim.  Lawrence v. Youngstown, Slip Opinion No. 2012-Ohio-4247.  The statute gives employees 180 days to file suit, but only if “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.” R.C. §4123.90.  In this case, the employee claimed that he failed to give the required 90 day notice on time because the employer delayed six weeks to notify him that he had been discharged while he had been on administrative suspension.  (The City had notified other departments and the plaintiff’s union on time).  Therefore, the Court created an exception to the 90 day deadline when “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.”  In such case, “the 90-day time period for the employer to receive written notice of the employee’s claim that the discharge violated R.C. 4123.90 commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.”

The Court found that the statute presumed that an employee would be notified within a reasonable time that he had been discharged.  Indeed, the Court posited that the statute placed

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. 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.

Accordingly, the Court held that the 90 day period would be tolled when an employer failed to give an employee reasonably prompt notice of his or her discharge:

[W]e find it evident that R.C. 4123.90 anticipates the employee’s awareness of the employee’s discharge. Consequently, a limited exception to the general rule that the 90-day period for employer notice of an alleged R.C. 4123.90 violation runs from the employee’s actual discharge is in keeping with the statute’s purpose. The 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. When those prerequisites are met, the 90-day time period for the employer to receive written notice of the employee’s claim that the discharge violated R.C. 4123.90 commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.