The Supreme Court of Ohio allowed yesterday a limited exception to an Ohio law mandating that a discharged employee notify a former employer of an intent to sue for workers’ compensation retaliation within 90 days of his or her termination.

Case summary details that Keith Lawrence was suspended without pay from his position with the city of Youngstown on Jan. 7, 2007.

Two days after issuing his suspension, the city decided to terminate Lawrence’s employment. It sent letters, dated Jan. 9, 2007, to multiple city offices and departments but failed to send a certified copy to Lawrence.

Lawrence contends he did not learn of his dismissal until Feb. 19, 2007 and his attorney notified the city in an April 17, 2007 letter that he intended to file an action alleging unlawful workers’ compensation retaliation and racial discrimination.

The Mahoning County Common Pleas Court found that the Ohio Revised Code dictated that the 90-day notification period started on the day of the termination, not the day of notification. Because Lawrence failed to notify the city within that period, the common pleas court granted the city summary judgment.

The 7th District Appellate Court affirmed that decision and Lawrence appealed to the high court.

“In affirming, the appellate court observed that R.C. 4123.90 specifically requires that notice of a claim be received by the employer ‘90 days immediately following the discharge’ and therefore unambiguously references the discharge date and not that of the employee’s receipt of the notice of discharge,” Ohio Supreme Court Justice Robert Cupp stated.

On review, a 6-1 majority stated that the date of the employee notification is typically the same as the date of the discharge, or the two are only separated by a few days. Maintaining that a delay of several days would not affect the employee’s ability to comply with the 90-day rule, the judges held the employer should be able to provide notice of discharge within a “reasonable time.”

“… (W)e reverse the judgment of the court of appeals because the facts of this case may require an exception to the general rule,” Cupp wrote for the court.

“We do not perceive this responsibility to occasion any onerous burden on an employer. Rather, it is something that rationally flows from the act of the discharge of an employee,” he added.

In his separate, dissenting opinion, Justice Terrence O’Donnell stated that the General Assembly was clear when writing the revised code that the clock should start when the employee was terminated. He held that this clarity eliminated confusion that would be caused by adding an exception.

“We ought not legislate. Our role is simply to interpret and decide, not to find ways to reach conclusions we like or to avoid harsh results. And, as here, when we do not follow the law, we have no law,” O’Donnell stated.

“In my view, this exception is not warranted, because a reasonably diligent employee should be able to discover an adverse employment action to meet the statutory requirements of the 90-day notice period, even if it commences from the date of discharge,” he added.

“This is a common sense starting point for all claims and eliminates the limitless number of exceptions that will be created by the majority decision crafted today to alter this well thought out legislative policy.”

Justice Judith Lanzinger wrote in a separate concurring opinion that the limited exception formed by the majority should be rendered unnecessary and replaced by a discovery rule that would start the clock when the employee becomes aware or should have become aware of the discharge.

“The employment relationship is not one-sided, and as the majority opinion notes, it is not difficult for the employer to notify its employee that his or her services are no longer needed,” Lanzinger stated.

Finding that Lawrence’s delay in learning of his discharge could create an exception to the revised code, the judges remanded the case to the 7th District to address the assignments of error previously determined to be moot.

Attempts to contact the city’s attorney, Neil Schor of Harrington, Hoppe and Mitchell Ltd., and Lawrence’s attorney, Martin Hume or Martin Hume Co. LPA, were unsuccessful prior to press deadline.

The case is cited Lawrence v. Youngstown, case No. 2012-Ohio-4247.

By | 2012-09-21T00:00:00+00:00 Friday, September 21, 2012|