Limiting exposure to retaliatory discharge claims

Why you can't rely on regular mail to deliver the pink slip to workers' comp claimants

The Ohio Supreme Court recently decided a case that should make employers re-evaluate how they give notice of termination to any employee who has previously filed for workers' compensation. Following the court's decision in Lawrence v. City of Youngstown, being able to establish actual notice by the previously injured employee of the date on which his/her employment ended is critical if the employer wants to limit the employee's ability to claim that the termination resulted from filing the workers' compensation claim—an unlawful cause for termination.

Ordinarily, giving termination notice to an employee is done in person, and often at the job site. Frequently, the employer relies on assistance from its human resources department to communicate the employment decision, document the exit meeting, collect any company property from the employee and ensure an orderly and uneventful exit.

However, when a previously injured employee who has been away from the job has simply failed to return to work when able to do so, has exhausted leave time and failed to provide any evidence that he/she is unable to return to work or perform the essential duties of the job or if a legitimate job restructuring or reduction in force is under way during the employee's absence, it is not unusual for employers to communicate terminations through regular U.S. mail. After the court's decision in Lawrence, however, communicating a termination in that manner to a previously injured employee who has filed for workers' compensation leaves an employer exposed to prolonged liability for a wrongful termination claim.

In Ohio, employees are protected by statute from being terminated because of filing for workers' compensation due to a workplace injury. Under Ohio Rev. Code 4123.90, no employer may discharge an employee for filing a workers' compensation claim or participating in any workers' compensation proceedings. Accordingly, if an employer's decision to terminate an employee coincides in any way with or following a workers' compensation claim or subsequent proceedings (which are ongoing), an employer faces the strong potential for drawing an additional claim for retaliatory discharge—even if the termination was made for a legitimate reason.

Fortunately, the statute limits the time period within which an employee may claim that the termination was unlawful and due to his/her workers' compensation claim. Under the statute, no retaliation claim can be maintained unless the employer receives notice of the claim within 90 days immediately following discharge of the employee. So, establishing an employee's knowledge of the moment of termination is critical for closing the window of time in which an employee may claim retaliation.

In Lawrence, the employee had been suspended without pay from work and was not working when the city of Youngstown discharged him. The city sent him a letter by regular mail notifying him that his employment was terminated shortly after his unpaid leave commenced. The employee, however, maintained that he did not learn of the discharge until several weeks later. As a result, he argued that the 90-day period within which to provide his employer with notice of the alleged retaliation did not begin to run when the employer sent the termination letter. Because the city had not provided notice by certified mail, the date of actual notice remained in dispute, and the Ohio Supreme Court held that the city "did not definitively demonstrate reasonably prompt notification." As a result, the employee was allowed to maintain a retaliatory discharge claim that otherwise would have been barred as late.

The court noted that methods of notification "like personal notification, hand delivery of notice, or a certified letter" are all "designed to effectively communicate notice reasonably promptly." Presumably, each of those methods would have prevented the employee from maintaining a "late" claim.

In the aftermath of Lawrence, if an employer wants to limit the time period available for a terminated employee to claim retaliation, notice of termination by regular mail is no longer enough.

—Jim Grove