As referenced in the previous article, Oklahoma’s law on workers’ compensation retaliation claims has undergone several changes since the 2014 move from the Oklahoma Workers’ Compensation Act to the Oklahoma Administrative Workers’ Compensation Act (OAWCA). Since the OAWCA was first enacted, there have been many challenges, many questions, and some tweaks. The most recent tweak was by the Legislature at the end of May when the Governor amended Section 7 – the part of the law that governs claims by current or former employees against employers for retaliation. Because of all the confusion, we thought it wise to run through the three major changes and explain the state of the law – at least the state of the law as it exists at this moment in time.

The OAWCA governs events which occurred on or after February 1, 2014. We now have the old Section 7 and the new Section 7. The new Section 7 will govern alleged violations occurring on or after May 28, 2019.

Scope of Coverage
Between February 1, 2014, and May 27, 2019, an employer could not “discriminate or retaliate” against an employee for the handful of reasons listed in the law. However, as of May 28, that language has changed to refer only to “retaliate”. Practically, an employer still cannot take adverse actions against an employee who, in good faith, has filed a claim for workers’ compensation benefits, etc., but this change is clarifying and restores the provision to language which existed prior to 2014.

Place Where Claims will be Heard
For actions based upon alleged retaliation or discrimination arising between February 1, 2014, and May 27, 2019, claims will be heard before the Workers’ Compensation Commission (no jury). For actions alleging retaliation on or after May 28 (remember, no more discrimination), the claims must be brought in district court (where there is a right to a jury trial).

Damages
There is one other significant change to Section 7 and it involves money. The old version of Section 7 reads:

If the Commission determines that the defendant [the employer] violated subsection A [the part of the law outlining discrimination and retaliation], the Commission may award the employee back pay up to a maximum of One Hundred Thousand Dollars ($100,000.00). Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall reduce the back pay otherwise allowable.

Section 7(C) (February 1, 2014, through May 27, 2019).

However, the law going forward reads:

An employer which violates any provision of this section shall be liable in a district court action for reasonable damages, actual and punitive, if applicable, suffered by an employee as a result of the violation. Exemplary or punitive damage awards made pursuant to this section shall not exceed One Hundred Thousand Dollars ($100,000.00). The employee shall have the burden of proof by a preponderance of the evidence.

Section 7(C) (effective May 28, 2019). This is significant.

Prior to May 28, 2019, the Commission was limited to awarding a maximum of $100,000 against an employer. As of May 28, 2019, a jury in a district court can award actual damages in whatever amount the employee can prove under the law plus punitive damages, which are capped at $100,000. So, for example, if an employee proved back pay damages in an amount of $300,000 and punitive damages in an amount of $100,000 (the cap) the total jury award would be $400,000 (plus attorney’s fees and costs).

This language is similar to the pre-2014 law so employers should not be unfamiliar with this landscape. But, for those employers who have been complacent since 2014 believing damages were strictly limited, it is time to wake up. You can rest assured Plaintiff’s attorneys are again very interested in bringing these claims, especially because (unlike prior to 2014), the employee’s attorney can now also recover their attorney’s fees from the employer if the employee wins.

By Kristen L. Brightmire, kbrightmire@dsda.com