Oklahoma High Court Finesses Constitutional Issue as to Retaliatory Discharge Statute

In Young v. Station 27, Inc., 2017 OK 68, 2017 Okla. LEXIS 69 (Sept. 12, 2017), the Supreme Court of Oklahoma finessed the constitutionality of the state’s current retaliatory discharge statute, 85A O.S. § 7, holding that the trial court had favorably passed upon the constitutionality of the wrong statute. The Court stressed that because plaintiff’s work-related injury occurred on January 29, 2013, prior to the February 1, 2014 effective date of the new statute, the former version of the retaliatory discharge statute, 85 O.S. 2011 § 341, applied to plaintiff’s claim. The Court did hold that plaintiff’s claim was not a Burk tort [see Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24], since an adequate statutory remedy had been provided by the Legislature to protect the public policy at issue.

No Right to Jury Trial in Proceeding Before Commission

The plaintiff had challenged the current retaliatory discharge statue on a number of constitutional grounds, including that if she was required to pursue her claim before the Oklahoma Workers’ Compensation Commission, she would not be entitled to a jury trial. That issue would appear still to be on the table when the case returns to the trial court level.

One of Several Constitutional Cases Before High Court

The case is one of several before the Oklahoma Supreme Court that seek to have multiple sections of Oklahoma’s Workers’ Compensation Act declared unconstitutional. Readers will recall that the state’s controversial opt-out law was declared unconstitutional in Vasquez v. Dillard’s, Inc., 2016 OK 89, in a 7–2 decision (for a “refresher” course on Vasquez, see my earlier post).