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Not So Fast: Oklahoma legislature has final word on where to file workers’ comp-based retaliation claims

published in McAfee & Taft EmployerLINC Alert | June 5, 2019

Just days after the Oklahoma Supreme Court’s long-awaited decision in Southon v. Oklahoma Tire Recyclers, LLC, which upheld the exclusive authority of the Oklahoma Workers’ Compensation Commission to hear and decide workers’ compensation-based discrimination and retaliation claims, Oklahoma’s Governor signed House Bill 2367 on May 28, 2019.

House Bill 2367 gives district courts (and not the Commission) exclusive authority to hear and decide workers’ compensation-based retaliation claims. The bill effectively nullifies the court’s holding in Southon, and with the Governor’s signature, leaves only one viable forum — district court — to assert such claims.

The bill also substantially restores Section 7’s damages provision to an earlier form. Section 7, as amended, places no cap on actual damages as long as they are reasonable. Section 7, as amended, also allows an employee to recover punitive damages not to exceed $100,000 and, like its predecessor, permits a prevailing party to recover costs and reasonable attorneys’ fees.

The news is not all bad for employers. Section 7, as amended, has eliminated “discrimination” as a basis for filing a lawsuit under Oklahoma’s Administrative Workers’ Compensation Act. Whether this leaves the door open for an employee to file a lawsuit for injury caused by alleged discrimination through some other means remains unseen.

As House Bill 2367 has an emergency clause, which makes the bill effective immediately, employers could be served with a workers’ compensation retaliation lawsuit today. The question remains whether the alleged retaliatory conduct (or even on-the-job injury) must have occurred post-amendment to be governed by Section 7, as amended, or alternatively, whether a retaliation claim may be filed in district court post-amendment, regardless of the date of the retaliatory conduct or on-the-job injury.

Employers that are defending pending claims at the Commission may once again, unfortunately, be forced to fight retaliation claims in two different forums, at least for a while. With this development, employers faced with the threat of a retaliation claim may want to explore early resolution should the opportunity arise.