In the recent Ohio Supreme Court decision of Sutton v. Tomco Machining, Inc., the Court ruled that an employer’s termination of an employee shortly after a work-related injury but before he filed a workers’ compensation claim can be retaliation in violation of public policy. The effect of the decision is to cloak Ohio’s at-will employees with an additional cause of action against employers for “workers’ comp retaliation,” even before the employee has expressed an intent to file a claim or has actually done so. Prior to this decision, Ohio law merely prohibited an employer from retaliating against an employee after he or she filed, instituted, or pursued a workers’ compensation claim.

To have a wrongful termination claim, an Ohio employee now merely needs to show a nexus between the adverse employment action (i.e., termination) and the potential workers’ compensation claim. Therefore, employers should take additional precautions to ensure that they have an “overriding business justification” for terminating an injured employee shortly after an incident. Of course, it is not unusual for an employer to take disciplinary action against an employee who has been injured as a result of his or her own negligence or misconduct. This decision encroaches upon that right to discipline and also upon the general law of Ohio that employees serve at the will of the employer, thereby permitting termination without cause.

Facts of the Case

Employee DeWayne Sutton allegedly injured his back early on a Monday morning in April 2008 while disassembling a saw at Tomco Machining, Inc., in Dayton, Ohio. Within 1 hour of being told of the injury, Tomco’s President Jim Tomasiak fired Sutton, who had been an employee for 2½ years. Tomasiak did not give Sutton a reason for the firing but did state that the firing was not because of Sutton’s work ethic or job performance or because Sutton had broken any work rule or company policy.

On July 1, 2008, Sutton sent a letter to Tomco informing it of his intention to file a claim under Ohio’s workers’ compensation retaliation statute—O.R.C. 4123.90. Sutton accused Tomco of terminating him to avoid having him considered an employee when he filed for workers’ compensation benefits, thereby foreclosing the claim and avoiding higher workers’ compensation premiums. Customarily, back injury claims are very costly to employers and are investigated and monitored closely. In addition, injuries complained of at the start of a shift on Mondays are scrutinized carefully by many employers to make sure the injury is not attributable to personal weekend activities.

The Ohio Supreme Court ruled that while the retaliation statute was inapplicable due to Sutton not filing a claim before he was fired, a new public policy tort claim should be created to cover the “gap” in the statutory workers’ compensation law. As a result, the case has been sent back to the lower court to have a trial on the issues of fact, including the motivation of the employer in terminating Sutton.

Based upon several cases over the last two decades, the right of employers to terminate employment at-will for any cause no longer includes the discharge of an employee where the discharge is in violation of a “public policy.” Unfortunately, an employer does not know that it has violated such a policy until the courts find one to exist—long after the termination decision has been made. The broadening of employee claims by the Ohio Supreme Court arguably undermines the authority of the legislative branch to prescribe what is in violation of the law and upsets the intricate statutory scheme designed to address workplace injuries. The dissenting justices argued that the existing retaliation statute, which requires the workers’ compensation claim to be filed or pursued before retaliation protections arise, should be honored because the lawmakers could have written a broader law to fit Sutton’s pre-claim circumstance if they had chosen to do so.

Ramifications of the Case

Every employer should carefully consider whether to terminate or discipline an employee for circumstances surrounding a workplace injury. Also, consider whether the employee has claimed an injury or sought accommodation under the Americans With Disabilities Act in an effort to strategically block the employer from taking justifiable disciplinary action against him or her for some other reason. Always document and date performance issues in a timely manner to avoid an inference of retaliation after the employee claims the injury.

No law prohibits an employer from terminating or disciplining an employee who disregards safe working practices and engages in misconduct. However, work and safety rules should be carefully crafted to justify such disciplinary action, and those rules should be uniformly applied. Employers should not be discouraged from enforcing their safety discipline programs, especially if an employer wishes to raise in an OSHA case the affirmative defense of unpreventable employee misconduct.

Most importantly, any discussion at the time of termination must be well considered before the words are uttered. Remember, you need not give any reasons for termination. If you do, make sure the reasons can be supported.
Review your safety and work rules today. Closely monitor all your workers’ compensation claims and consult experienced counsel on these delicate issues.