Prohibited hiring trumps retaliation claim

published in Oklahoma Employment Law Letter | July 1, 2012

By Charlie Plumb

What happens when a fired employee sues her former employer for retaliatory discharge when, according to Oklahoma law, she never should have been hired in the first place? An Oklahoma Court of Civil Appeals’ decision recently sorted out that question.

Workers’ comp retaliation

The Oklahoma Workers’ Compensation Act prohibits an employer from retaliating against and discharging an employee who has sought treatment or workers’ comp benefits as a result of an on-the-job injury. When an employer is accused of retaliatory discharge, the claim turns on whether the termination decision was motivated by the fact the employee was injured on the job or sought workers’ comp. Retaliation does not need to be the employer’s only motivating factor for making a discharge decision. If retaliatory motivation was a significant factor in the decision to terminate the employee, a retaliatory discharge claim can succeed. That is true even if there are other legitimate reasons to justify the termination.

Nursing home hiring

Bernestine Johnson was hired as a nurse’s aide by Saint Simeon’s Episcopal Home to work in its residential facility for Alzheimer’s patients. Johnson was injured on the job and filed two workers’ comp claims against Saint Simeon’s. Sometime after filing the claims, Saint Simeon’s learned Johnson had been convicted in Indiana for dealing cocaine and other narcotic drugs. Upon learning this information, Saint Simeon’s discharged her while her two workers’ comp claims were pending. Johnson sued Saint Simeon’s for workers’ comp retaliation and argued that at least part of its decision to terminate her was based on her workers’ comp claims.

The ‘no-felon’ rule

Saint Simeon’s was covered by the Oklahoma Nursing Home Care Act, which requires nursing homes to obtain from the Oklahoma State Bureau of Investigation a criminal check of any applicants for employment. Employers covered by the Act are not to hire anyone before receiving the results of the criminal check. If the criminal history background check shows the applicant has been convicted of possession or distribution of certain controlled substances, the nursing home may not hire the applicant.

Under the Act, an employer may also request criminal history background checks at any time after an employee is hired. If a postemployment criminal history background check reveals an employee was convicted of possession or distribution of certain controlled substances, the Act requires the employer to immediately terminate the employee.

Johnson claimed Saint Simeon’s knew about her Indiana drug convictions when she was hired. According to her, the fact that it already knew about the convictions when she was hired but later fired her after she filed the two workers’ comp claims proved her termination was retaliatory. The Oklahoma Nursing Home Care Act saved Saint Simeon’s, and Johnson’s lawsuit was dismissed. Johnson v. Saint Simeon’s Episcopal Home, Inc., 2012 OK CIV APP 6.

Bottom line

Oklahoma’s court of appeals disregarded Johnson’s accusations that Saint Simeon’s knew of her felony convictions when she was hired. As far as the court was concerned, the important point was that under the Act, she was not permitted to remain employed at Saint Simeon’s. Because of that prohibition, she could not turn around and sue her employer for losing a job she had no legal right to retain.