Retaliation
State workers' compensation laws typically prohibit employers from discriminating against workers, or even prospective workers, because of those workers' filing of claims for workers' compensation benefits. For the most part, injured employees are protected from discriminatory conduct by employers commencing immediately after injury, even before formal workers' compensation claims are filed. That is, an employee's cause of action for discrimination or retaliation may be successful even though all the employee did was give notice to the employer of an injury or claim.
Forms of Retaliation
Workers' compensation retaliation often involves termination of employment. However, other less obvious adverse actions have found to be retaliatory as well.
- Demotion: Example: After being injured on the job, an employee finds that he is downgraded from a supervisory position to a nonsupervisory position.
- Salary reduction: Example: After surgery related to carpel tunnel syndrome caused by repetitive actions required in her job, an employee finds the hourly rate she is paid reduced by 10 percent.
- Poor performance report: Example: An employee, who has always received satisfactory reviews in his five years on the job, returns to work after a period of work-related temporary disability. Upon his next evaluation, his performance rating is below the company standard.
- Reassignment to tasks that are unpleasant, beyond job description, or dangerous: Example 1: An employee, who has always worked the day shift in her three years of employment, finds herself reassigned to the evening shift after receiving medical treatment due to a fall at work.
Example 2: A warehouse worker, who requires stitches on his forehead after being hit by falling crates, finds that his employer now requires him to clean the employee restrooms. - Other negative effects on an employee, resulting from assertion of workplace rights, may be deemed retaliatory based on the individual facts.
Enforcement
Generally, workers' compensation claims are administered through specific state workers' compensation agencies. Workers' compensation retaliation claims, however, may be handled by states' attorney general office.
Circumstantial Evidence of Retaliation
Each state has had experience with workers' compensation retaliation claims and the law has developed through interpretation of it in case law. Generally, to establish a claim, injured employees must show that they engaged in a statutorily-protected activity, they suffered an adverse employment action, and the adverse action was in some way related to the protected activity. Employees are generally able to show a causal connection between the protected activity and the adverse employment action when they have provided evidence that the employer was aware of the protected conduct and a close chronological proximity existed between the employer's knowledge and the subsequent adverse action.
Once an employee has cleared the initial hurdles, his or her employer must then offer a legitimate and nondiscriminatory reason for the adverse action. If the employer is able to do so, the burden goes back to the employee to show that the employer's reason has no basis in fact, that it was not the true factor motivating the adverse action, or that the employer's reason was not sufficient cause for the adverse action.
Since direct evidence of retaliation seldom exists, the law has developed to allow employees to show, through circumstantial evidence, that the employer has committed workers' compensation retaliation. The evidence may include:
- The adverse action occurred soon after the filing of a claim or soon after an accident for which the worker may file a claim
- An employer enforces safety-incentive policies in such a way that employees feel pressure not to report accidents or injuries for fear of angering their co-workers
- Management feels pressure to keep workers' compensation claim costs down
- Workers are influenced subtly or not so subtly to avoid medical attention
- Inconsistent treatment of the injured employee as compared to other employees
- Unwarranted postaccident drug testing
Employers' Defenses
As stated above, once a worker has provided evidence linking an adverse action with the filing of a worker's compensation claim, their employer must show that the adverse action was due to some other valid factor. For instance, an employer may avoid liability for retaliation in cases when it are able to show that an adverse action, such as termination, was the result of uniform enforcement of the employer's rules, processes, or procedures.
Filing a workers' compensation claim does not prevent an employer from terminating an employee for a justifiable, legitimate, and nondiscriminatory reason, such as failure to perform. Employers should insure that there is a solid foundation for any adverse postclaim employment action, supported by documented facts, to avoid liability for a workers' compensation retaliation claim.
Form: Worker' Compensation Retaliation Claim
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Worker' Compensation Retaliation Claim
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