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Your Rights Retaliation: Workers Comp

Clark Law Group

This page provides answers to the following questions:

1. I was injured at work and want to file a workers compensation claim, but I am worried about losing my job. Can my employer fire me for filing a workers compensation claim?

2. Which federal law(s) make it illegal to retaliate on the basis of seeking workers compensation?

3. How can I show that I was retaliated against in violation of the workers compensation law?

4. Which individuals are protected from retaliation under the law?

5. What is considered to be "protected activity" covered by laws against workers compensation retaliation?

6. What actions by the employer are considered to be retaliation?

7. How do I prove that the protected activity caused the adverse action?

8. If I think I have grounds to sue my employer for retaliating against me, what do I do?

1. I was injured at work and want to file a workers compensation claim, but I am worried about losing my job. Can my employer fire me for filing a workers compensation claim?

Employers facing increased insurance costs (or direct payment to the employee if they are the direct insurer) may be tempted to retaliate against employees who seek their rightful workers compensation benefits.

In most states, it is against the law for your employer to fire or otherwise retaliate against you because you brought a workers' compensation claim, depending on the facts of your individual case and whether your state has a law protecting against workers compensation retaliation.

2. Which federal law(s) make it illegal to retaliate on the basis of seeking workers compensation?

Federal law does not have a prohibition against workers compensation retaliation. However, there are numerous federal laws prohibiting other kinds of retaliation.

While many states have protection against workers compensation retaliation as a necessary safeguard against employer abuse, not all states have laws, and there is some variation among state laws. There are many similarities among these laws. For example, the way an employee proves retaliation and some of the procedures involved often have much in common.

If you feel you have suffered retaliation for filing a workers compensation claim, you may want to consult with an attorney to learn more about any protections that may apply to you.

3. How can I show that I was retaliated against in violation of the workers compensation law?

While individual state laws may vary, to win a case of workers compensation retaliation, you must generally be able to prove all four of the following elements:

That you were an employee entitled to receive benefits under the workers compensation law;

That you took some protected activity, such as filing a claim for compensation;

That you suffered an adverse employment action, such as termination or other change in the terms and conditions of your employment; and

That the employer was motivated by your protected activity to impose the adverse action.

4. Which individuals are protected from retaliation under the law?

While state laws may vary, generally you must be an employee. Your employer must participate in the state workers compensation program or be self-insured.

You must have acted in good faith in seeking workers compensation benefits or engaging in protected activity. While you may still bring a retaliation claim even if you lose your underlying workers compensation claim, your state might not protect you from retaliation if your workers compensation claim was knowingly false, fraudulent, or not brought in good faith. You may want to consult with an attorney to learn more about your state's law.

5. What is considered to be "protected activity" covered by laws against workers compensation retaliation?

In order to be protected, you must have exercised a right granted by the workers compensation program. State laws differ as to what constitutes an exercise of this right. Some state laws require that you formally document the on-the-job injury with the employer or the workers compensation bureau.

However, most state laws are written more broadly. For example, you may be protected when you have claimed or attempted to claim a benefit, made known your intention to file a claim, or even simply suffered a work injury, which is compensable under the workers compensation law.

While in some states, you may still have protection against retaliation without formally filing a written claim for workers compensation benefits, the best way to make sure you are covered by anti-retaliation laws is to actually fill out and file the necessary claims documents promptly after you are injured.

6. What actions by the employer are considered to be retaliation?

You must show that the employer had discharged or otherwise treated you adversely because of your workers compensation claim. All states with retaliation laws recognize that it is illegal to terminate an employee, but state laws differ as to the range of other employer actions that are considered to be illegal retaliation.

Despite the variations between state laws, all the laws uniformly require some identifiable change in the terms or conditions of your employment that is to your detriment, such as:

demotions;

changes in position or responsibilities;

lowered pay; or

unwarranted disciplinary actions.

7. How do I prove that the protected activity caused the adverse action?

For you to win, you must prove that your employer's action (termination, demotion, etc.) was because of your protected activity. This is called "causation." This is often the most disputed and difficult part of proving your retaliation claim.

A state may require only that your actions were a substantial factor in the decision to terminate or otherwise change the position of the employee. Alternatively, state law may require that the sole reason for termination was your action in seeking compensation benefits. Most states fall somewhere in between, and require that your actions be a determinative factor.

In addition to the specific law of the state, the circumstances of the case will determine whether you were illegally discriminated against. An alternative legitimate reason for termination, such as a violation of company policy or poor performance reviews, often plays a large role, and can be used by the employer to defend against your retaliation claim.

However, unlawful retaliation can be inferred from timing (how soon it occurred after the employer learned about the protected activity), animus (the boss getting angry about the protected activity), deviation from normal practices (people are not usually fired for this reason, or in this manner), changing explanations, a pattern of adverse actions against employees who file workers compensation claims, or the use of false evidence.

8. If I think I have grounds to sue my employer for retaliating against me, what do I do?

Many states require a retaliation claim to be filed very soon after the retaliation occurs. You may need to take some action under your state's law in a period as short as a few weeks or months. If you believe you have been the target of retaliation related to a workers compensation claim, it is critical that you learn your state's time limit immediately by contacting an attorney licensed in your state. If you do not file within the time limit in your state, you may lose your rights to take action against your employer's retaliation.

For more information about workers compensation, see our site's main workers compensation page.

This page was updated on February 28, 2006



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