The Employer's Legal Resource: Where Do Employees Sue for Retaliation? Recent Case Spawns Legislative Changes in the Workers' Compensation World


For those of you following Oklahoma law, you will remember these cases used to be tried in state district courts. Then, in 2014, the Oklahoma Legislature abolished the Oklahoma Workers' Compensation Act in favor of the Oklahoma Administrative Workers' Compensation Act (OAWCA). With the OAWCA, claims of workers' compensation retaliation seemed to be moved to the new Workers' Compensation Commission and out of the courts – but employers and employees fought over the new language. Enter Thomas Southon.

Thomas Southon filed a lawsuit against his former employer, Oklahoma Tire Recyclers, LLC, alleging that he was terminated because of his pending workers' compensation claim. Oklahoma Tire moved to dismiss the lawsuit, arguing that the Workers' Compensation Commission, and not the district court, was the appropriate venue for wrongful termination claims involving workers' compensation benefits.

Southon responded by saying that the statute governing his claim, 85 Okla. Stat. § 7, was unconstitutional because it denied him the opportunity to have his case heard by a jury. He wanted to keep the case in district court and out of the purview of the administrative agency. Article II, Section 19 of the Oklahoma Constitution states: "[t]he right of trial by jury shall be and remain inviolate." The Oklahoma Supreme Court held that, because a cause of action for retaliatory termination under the Workers' Compensation Act was not created until 1976, it was not an action which was originally guaranteed at the time of the adoption of the Oklahoma Constitution. Thus, Section 7 of the OAWCA is constitutional.

Southon raised two other objections to the constitutionality of Section 7—that it denied him due process of law and that it was a special law that rests on a false or deficient classification—both of which were dismissed by the court with only brief discussion.

Southon additionally argued that he should be able to litigate his claim in district court because the remedies of Section 7 were inadequate. He sought to couch his claim under the exception to the employment-at-will doctrine created in Burk v. K-Mart Corp., which subjects employers to tort liability if the employee is discharged in violation of an established and compelling public policy. The court rejected this argument as well because the statutory remedy under Section 7 sufficiently protects employees and therefore precludes a Burk cause of action.

It is important to note that Section 7 of the OAWCA was amended by the Oklahoma Legislature effective May 28, 2019—shortly after this decision was issued. The new version of the law now states that it is the district courts who have exclusive jurisdiction over these types of retaliation claims. The timing will be significant to employers. The decision in Southon applies only to those claims that arose prior to May 28, 2019. In other words, if a person claims that he suffered retaliation for conduct protected by Section 7 of the OAWCA on or before May 28, that claim would be heard by the Commission. However, if the alleged retaliation occurred after May 28, 2019, that claim must be brought in the district court.

By Rebecca D. Bullard,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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