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Kegler Brown E-mployment Alert

Based on a recent decision of the Ohio Supreme Court, an employer must now inform an employee of his or her own termination within a “reasonable time” and retain evidence such notification, at least for purposes of Ohio’s workers’ compensation retaliation statute.

RC 4123.90 provides that “[n]o employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed or instituted, pursued or testified in any proceedings under the Workers’ Compensation Act…” A lawsuit under the statute must be filed within 180 days after the discharge, and “no action may be instituted or maintained unless the employer has received written notice of a claimed violation … within the ninety days immediately following the discharge.” Understandably, Ohio courts have long held that the notice requirement is clear and not subject to exception.

The Ohio Supreme Court has now fashioned a narrow exception to the 90-day requirement. In Lawrence v. City of Youngstown, Slip Opinion No. 2012-Ohio-4247, the Court first recognized that “…in general, ‘discharge’ in R.C. 4123.90 means the date that the employer issued the notice of employment termination, not the employee’s receipt of the notice or the date the employee discovered that he or she might have a claim for relief under the statute.” However, the Court held that an employer must issue the notice of discharge within a “reasonable time” for the 90-day notice requirement to begin on the date of discharge.

In Lawrence, the claimant was suspended without pay on January 7. On January 9, the employer issued a letter to claimant advising him of his termination effective that same date. The letter was copied to the claimant’s union. However, the Court noted that “the City did not send a certified copy of the letter to Lawrence” who claimed that he did not learn of his discharge until February 19.

Lawrence provided his 90-day notice to the employer on April 18, 2007, 99 days after the date of discharge. He filed suit within 180 days of the discharge. The trial Court granted summary judgment in favor of the employer based both on the failure to provide the mandatory notice within 90 days of discharge and on the merits of the claim. On appeal, the Court of Appeals upheld the decision relative to the failure of the required notice and did not address the merits.

The Supreme Court held that Lawrence timely filed notice within 90 days. Lawrence claimed that he did not receive the letter from the City, and the City offered no proof (e.g. certified mail receipt) of Lawrence’s actual receipt of the letter. Thus, assuming that claimant did not become aware of the discharge until almost six weeks later, his 90-day notice was deemed timely. Reading R.C. 4123.90 in conjunction with the liberal construction mandate of R.C. 4123.95, the Court found “an implicit responsibility on an employer to provide its employee notice of the employee’s discharge within a reasonable time after the discharge occurs.” The Court noted that this “reasonable time” standard requires a case-by-case analysis but that a “delay of several days” would not prevent the 90-day notification period from beginning to run “on the discharge date.”

Accordingly, employers should provide written notice of termination immediately or as soon as possible after termination and retain evidence of the employee’s receipt of it.