By a 4-3 vote in Sutton v. Tomco Machining, the Ohio Supreme Court added a new public policy cause of action to the workers compensation system.  The decision, summarized here, allowed an employee to bring a suit for retaliation following his firing after he reported a workplace accident, but before he had done anything to file a workers compensation claim.  The statute allows retaliation claims, but only for retaliation after an employee has filed a claim or engaged in certain other specified activities.  The Court, in a decision written by Chief Justice O’Connor, found that the law as written established a clear public policy and that granting a new right for claims not falling within the law would not interfere with what the legislature intended.  The majority then further ruled that the relief available under the new public policy cause of action would be limited to the relief that could be provided under the statute. 

The dissenters argued that filling in perceived gaps was a legislative function, which the Court was not suited to perform. Even if an expanded right to sue seemed like a good thing, the Court did not have the benefit of the legislative process to enable it to consider all aspects of the issue.  Justice Cupp, who had extensive legislative experience before joining the Court, wrote:

“The conduct that the statute seeks to prohibit is an employer’s retaliating against an employee after the employee takes some action in pursuit of a workers’ compensation claim. This is the entire essence of the statutory proscription. Because the statute does not also proscribe employer conduct that may tend to discourage or prevent the employee from pursuing a claim in the first instance, it is clear that the legislature chose not to include such conduct. If the legislature had so intended, it would have been a simple matter for it to include language proscribing such conduct. … It may be good public policy to include an employer’s preemptive conduct within the statutory proscription, or there may be adverse consequences to such a policy that are not apparent on its face. This court has insufficient information available to it to make such a far-reaching policy choice. In any case, the legislature did not include such wording, which makes it clear that  the legislature intended not to regulate in this area beyond the conduct proscribed in R.C. 4123.90.”

This is another in the line of cases that make it more difficult for employers to operate their businesses, not because they engage in retaliation or other violations of law, but because they are unable to count on what the laws actually say.  As a result, they cannot get cases resolved at an early stage, before expenses pile up. There really is nothing employers need to do differently as a result of this case, other than to make sure their employment practices liability insurance covers the risk, or at least the defense costs.