Employer Retaliation against the Workers' Compensation Claimant

Workers' compensation is sometimes viewed as a compromise between employees and employers: workers give up the right to sue for large awards in court in exchange for certain and timely, albeit relatively lower, reimbursement for work-related injuries and illnesses. Employers take on the responsibility for these injuries and illnesses even if they are not at fault, but they no longer have to worry about being tied up in court and potentially liable for large verdicts.

Unfortunately, even in this spirit of compromise, sometimes an employer may retaliate against an employee for filing or even talking about filing a workers' compensation claim. In most states, employees have legal rights and remedies in response to such an adverse employer action. If you encounter retaliation from your employer in a workers' compensation matter, an experienced workers' compensation attorney can advise you of your legal options.

Examples of Retaliation

Most commonly, people think of employer retaliation in the form of retaliatory discharge - unjustly firing an employee for pursuing his or her workers' compensation rights. But improper employer retaliation can come in other forms short of termination, such as discrimination or harassment in the following ways:

• Undeservedly unflattering performance review
• Failure to promote
• Adverse wage action
• Isolation or intimidation in the workplace
• Demotion
• Threats of adverse action
• Negative reassignment, reclassification or transfer
• Interference with the workers' compensation claims process
• Refusal to rehire
• Negative action vis--vis employment benefits or terms of employment, such as insurance, vacation or scheduling
• Unreasonable increase or decrease in job duties
• Unwarranted disciplinary action
• Undeservedly negative employment references
• Retaliation against co-employees testifying in support of a claimant or cooperating in the investigation

Legal Remedies for Retaliation

Although a relatively recent development, most states have some legal remedy for employees whose employers have retaliated against them for taking workers' compensation action. The remedies available vary from state to state, so it is a good idea to consult an attorney to learn about your particular options.

Many states have legislatively created legal protections for such employees. These remedies may be available through state agencies and/or in court actions. Even where legislative action has not protected such workers, many states' courts have allowed retaliatory discharge lawsuits for exercising workers' compensation rights. Some states allow both statutory and court-created or common-law remedies; other states may only provide for one or the other.

Even if your state has not recognized these remedies for employer retaliation in the workers' compensation setting, there may be other ways to find help.

Justifiable Employer Action

Employers may still legitimately terminate or discipline any employee, regardless of workers' compensation status, as long as the negative action is not a pretext for workers' compensation retaliation and as long as the action does not violate any other employment laws.

Conclusion

Stand up for yourself if you have been the victim of employer retaliation in response to the exercise of your workers' compensation rights. A skilled lawyer can advise you of the law in your state surrounding workers' compensation retaliation.

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