In a 6-1 decision announced on September 20, 2012, the Supreme Court of Ohio recognized a limited exception to the general rule that a terminated employee must notify his or her employer of the employee’s intent to file a retaliatory discharge lawsuit under Ohio Revised Code Section 4123.90 within 90 days after the date of the employee’s termination, and held that trial courts may delay the start of the 90-day notification period in a workers’ compensation retaliation case if they find that a fired employee did not become aware that he or she had been fired “within a reasonable time” after the employer’s action terminating his or her employment. (Lawrence v. City of Youngstown, 2012-Ohio-4247).
The Court’s opinion arose out of a case filed by Keith Lawrence, an employee of the City of Youngstown, who was suspended from his job duties without pay on January 7, 2007. Two days later, on January 9, the city placed a notice in Lawrence’s personnel file indicating that his employment had been terminated. However, the city did not send a copy of the letter to Lawrence by certified mail or present it to him in person. Lawrence subsequently denied that he had received a copy of the January 9 letter, and asserted that he did not learn that he had been discharged until Feb. 19, 2007, almost six weeks after the termination of his employment.
On April 17, 2007, Lawrence’s attorney sent a letter notifying the city that he intended to file suit under R.C. 4123.90, alleging that Lawrence’s firing was retaliation for his earlier filing of workers’ compensation claims. Lawrence filed suit against the city in the Mahoning County Court of Common Pleas on July 6, 2007.
The city moved for summary judgment on Lawrence’s claim, arguing that the trial court lacked jurisdiction to hear the claim because Lawrence had not complied with the 90-day notification requirement of R.C. 4123.90. The Court granted the summary judgment motion in favor of the city. Lawrence appealed. The Seventh District Court of Appeals affirmed the trial court ruling regarding when the 90-day notification began to run, but certified that its decision on that issue was in conflict with earlier decisions of the Sixth and Eleventh District Courts of Appeals. The Supreme Court accepted the case to resolve the conflict among appellate districts.
Writing for the majority, Justice Robert Cupp pointed to R.C. 4123.95, which mandates that Ohio’s workers’ compensation statutes “shall be liberally construed in favor of employees.” The Court concluded, “R.C. 4123.90…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.”
Further, the Court held that:
“Reading R.C. 4123.90 and 4123.95 in pari materia, we 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 became aware of the discharge or the date the employee should have become aware of the discharge.”
Justice Judith Ann Lanzinger entered a separate opinion concurring in the majority’s judgment. She was joined by Justice Paul E. Pfeifer. Justice Terrence O’Donnell dissented.
While the burden that this holding places on an employer is relatively minor, and arises only when an employee has previously filed a workers’ compensation claim, it nevertheless means that employers must be proactive when notifying an employee of his or her termination in order to ensure that the 90-day notification provision begins on the date of termination.