Many injured workers hesitate to file a workers' compensation claim out of fear that their employer will fire them, demote them, or otherwise punish them. It's crucial to understand that retaliating against an employee for reporting a workplace injury or filing a workers' compensation claim is illegal in all 50 states.
What Is Employer Retaliation?
Retaliation (sometimes called "wrongful termination" or "discriminatory discharge" in the context of workers' comp) occurs when an employer takes an adverse action against an employee because that employee exercised their legal right to seek workers' comp benefits. Retaliation isn't always as obvious as being fired. It can take many forms:
- Termination or firing
- Demotion to a lower-paying or less desirable position
- Reduction in hours or pay
- Unwarranted disciplinary action or negative performance reviews
- Reassignment to an undesirable shift or location
- Hostile work environment, harassment, or intimidation
- Threats of termination or immigration consequences
- Refusal to rehire (if you were temporarily laid off)
Proving Employer Retaliation
Proving retaliation can be challenging, as employers rarely admit to firing someone because of a workers' comp claim. They typically invent a pretext, such as "poor performance" or "violating company policy." To win a retaliation claim, you must generally prove three elements:
- Protected Activity: You engaged in a legally protected activity (e.g., reporting an injury or filing a claim).
- Adverse Action: Your employer took a negative action against you (e.g., fired or demoted you).
- Causation: There is a causal link between your protected activity and the adverse action.
Types of Evidence Used to Prove Retaliation
- Timing: If the adverse action occurred shortly after you reported your injury, this "temporal proximity" is strong circumstantial evidence.
- Inconsistent Explanations: If your employer gives shifting or contradictory reasons for firing you.
- Disparate Treatment: If you are punished for a policy violation while other employees who commit the same violation are not.
- Positive Work History: A sudden string of negative performance reviews immediately following an injury, despite a previously spotless record.
- Direct Evidence: Statements, emails, or texts from supervisors expressing frustration about your claim.
What to Do If You Experience Retaliation
- Document Everything: Keep a detailed log of all incidents, including dates, times, what was said, and who was present. Save all relevant emails and texts.
- Do Not Resign: Unless you are in immediate danger, do not quit. Resigning can make a retaliation claim much harder to prove (unless the environment is so hostile it constitutes "constructive discharge").
- Follow Company Procedures: Continue to do your job to the best of your ability and follow all company rules and reporting procedures.
- Seek Legal Counsel Immediately: Retaliation claims are complex employment law issues that often intersect with workers' comp law. An attorney is essential.
Compensation for Retaliation
If you successfully prove retaliation, the compensation you can receive is typically separate from, and in addition to, your workers' compensation benefits. Depending on your state, you may be entitled to:
- Reinstatement to your job
- Back pay (wages lost due to the retaliation)
- Front pay (future lost wages)
- Punitive damages (designed to punish the employer)
- Attorney's fees