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Workers’ Compensation Retaliation: Risky Business

Although workers’ compensation law is highly dependent upon the laws of the state in which your employees work, it is generally unlawful to discharge or otherwise discriminate against an employee for exercising his or her rights under workers’ compensation laws. Employees who have been discharged or discriminated against by their employer in violation of these laws may bring a civil action for workers’ compensation retaliation seeking both compensatory and punitive damages. To prevail, an employee typically must establish that he or she is an employee of the organization; he or she exercised a right granted by the workers’ compensation law; the employer discharged or otherwise took “adverse action” against the employee; and there was a causal connection between the two.

Examples of actions that have been found to be retaliatory adverse actions include schedule changes, mistreatment by co-workers that is tolerated, failing to invite the employee to training sessions, failing to consider the employee for promotion, and negative comments by management about how workers’ compensation claims hurt the organization’s bottom line. Like any other type of retaliation, an organization’s first line of defense is to have policies enforced uniformly against retaliation. But far beyond policies, management needs to treat fairly those employees filing such claims—even when workers’ compensation costs are skyrocketing. Employers should avoid speeches that associate a negative attitude with the filing of a claim, and, instead, focus its efforts on stressing safety throughout the workplace.

Prior to terminating or disciplining an employee who has recently (i.e., within the last six months) made or settled a workers’ compensation claim, managers should first evaluate whether treatment of the employee is consistent with action taken against other employees for the same or similar conduct. Management also should investigate whether there has been maliciousness or spitefulness in the treatment of an employee prior to being terminated after a workers’ compensation claim has been filed. Managers should also closely examine the documentation and talk to the decision-makers to ensure that the timing of the decision is not related to the prior claim filing. Of course, the closer in time the termination or discipline is to the employee making a workers’ compensation claim and/or settling a workers’ compensation claim, the more likely it is that an employee will be able to establish an inference of retaliation.

To fully understand its risks, an organization should take proactive measures to determine how the courts in the states in which its employees work have ruled upon some recent “hot topics.” Specifically, some states allow an employee to assert claims directly against his or her supervisor for workers’ compensation retaliation (i.e., the supervisor faces individual liability). Another state recently determined that its state’s workers’ compensation retaliation statute applied to an employee’s claim that he was terminated by his employer after the employer learned that he had filed a workers’ compensation claim against his previous employer. Another recent decision extended the protection against workers’ compensation retaliation to an employee who had not actually filed a workers’ compensation claim but alleged only she was discharged for seeking medical attention for work-related injuries. Noting that a request for medical attention is the crucial first step in exercising rights under the workers’ compensation law, the court said it would be unreasonable to permit retaliation claims by employees that are fired after filing compensation claims but not by those injured and fired before they ever get a chance to file claims. In addition, a court recently ruled that when a married couple both work for the same employer, and one exercises his or her rights under the workers’ compensation law, the employer may not retaliate against the non-injured spouse by terminating him or her from employment any more than the employer can retaliate against the injured spouse.