You're Fired! Wait, Didn't Anyone Tell You? Ohio Supreme Court Addresses the Workers' Compensation Statutory Notice Requirement
The Ohio Supreme Court issued a decision yesterday in Lawrence v. City of Youngstown, 2012-Ohio-4247 (Sept. 20, 2012), which reminds employers that they have a duty to notify employees within a reasonably prompt time of their discharge.
Keith Lawrence, a former City of Youngstown employee, was suspended on January 7, 2007, without pay, pending an investigation. Two days later, the City discharged him. Lawrence claimed he did not become aware of his discharge until February 19th—nearly six weeks later. The City stated it sent Lawrence a letter because he was not working at the time he was discharged. Unfortunately for the City, the letter was not sent certified, so there was no proof that Lawrence received timely notice of his discharge. Lawrence's attorney sent the City a letter on April 17, 2007, stating Lawrence intended to bring an action alleging unlawful workers' compensation retaliation. Lawrence filed his complaint on July 6, 2007. One small problem—the notice letter was not sent to the City within the 90-day period required by Ohio's workers' compensation retaliation statute, R.C. 4123.90.
The statute states that any employee who believes he has been retaliated against for having filed a workers' compensation claim, "shall be forever barred unless [the action is] filed within one hundred eighty days immediately following the discharge... and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge."
The trial court and the Seventh District Court of Appeals ruled in the City's favor, finding they lacked jurisdiction because Lawrence's 90-day letter was not timely. The Seventh District further clarified, the "90-day notice period begins on the date of actual discharge, not notice of discharge." Neither the appellate court nor the trial court had jurisdiction over the retaliation claim, because Lawrence's notice to his employer was received more than ninety days immediately following his discharge.
Lawrence did not dispute that failure to comply with the 90-day notice requirement would mandate dismissal of his complaint. He argued, however, that R.C. 4123.95 requires a liberal construction of Ohio's workers' compensation statute in favor of the employees, which would result in a finding that his 90-day letter, which was sent within 90 days of his learning of his discharge was timely. The appellate court rejected this notion, stating there was no need for liberal-construction because R.C.4123.90 was unambiguous in setting the starting date for counting 90 days as the date of the actual discharge.
The Supreme Court disagreed, concluding that:
R.C. 4123.90 when viewed in conjunction with R.C.4123.95 and read in pari materia, 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.
The Court held it is not unreasonable, nor does it burden employers to require them to provide reasonably prompt notice of discharge to an employee. According to the Lawrence decision, so long as the employer communicates the discharge decision within a reasonable time the 90-day period would still begin to run on the actual discharge date. The Court further noted that the determination of whether a discharge decision was communicated within a reasonable time requires "an inquiry dependent on the facts of each situation," but also noted that "[a] delay of several days would not prevent the 90-day period … from commencing to run on the discharge date."
But the Court did not stop there: "Even if an employer does not communicate the discharge to the employee within a reasonable time, if the employee nonetheless becomes otherwise aware of the discharge or should have become aware of it in the exercise of due diligence within a reasonable time, then the period of 90 days must still be counted from the actual discharge date."
Therefore, based on Lawrence, the actual date of discharge will commence the running of the 90-day period unless: (1) the employee did not become aware of the fact of his discharge within a reasonable time after the discharge occurs, and (2) he could not have learned of the discharge within a reasonable time in the exercise of due diligence. If both of 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." (emphasis added).
In Lawrence, the City lacked evidence of face-to -face or other oral notification of the termination and had not sent Lawrence a certified letter to prove that it notified Lawrence of his termination within a reasonable period of time. Therefore, based on the evidence before it, the Court held the City may have timely received Lawrence's 90-day letter alleging a retaliatory discharge 58 days after Lawrence may have learned of the discharge and therefore held that the letter was timely delivered.
What employers should know
To eliminate any doubt that a former employee has received reasonably prompt notice of discharge, Ohio employers should do one of the following:
- notify the employee face to face regarding his or her termination;
- hand deliver notice; or
- send a certified letter.
Doing so will avoid causing any uncertainty as to whether the employee has complied with the statutory timelines for filing a workers' compensation retaliation lawsuit.