People who are injured while they are working are entitled to receive workers’ compensation benefits. These benefits come from insurance that employers are mandated to carry as a protection for their employees. Workers’ compensation benefits pay for the medical expenses that relate to the workers’ injuries and a portion of their income losses if they are forced to miss work for an extended period. Unfortunately, many employers do not want to have their insurance carriers pay out workers’ compensation benefits for the claims filed by their employees. This is because the premiums that the employers have to pay will increase. Because of this, some employers try to discourage workers from filing claims for workers’ compensation benefits. In some cases, employers may retaliate against workers who have filed workers’ compensation claims and have been approved for benefits. The employment lawyers at Swartz Swidler are prepared to help workers who have been retaliated against by their employers after filing workers’ compensation claims.
Forms of employer retaliation
In New Jersey and Pennsylvania, employers are required to carry workers’ compensation insurance for the benefit of their employees and to offer reasonable accommodations to the workers upon request after they return to their jobs. Employers are forbidden from retaliating against workers for filing workers’ compensation claims. Despite these laws, some employers take adverse job actions against their employees to retaliate against them for applying for workers’ compensation benefits.
Employer retaliation can take several forms, including the following:
- Giving an undeservedly negative performance review to the injured worker
- Denying a promotion
- Failing to provide reasonable accommodations
- Demoting the injured worker
- Transferring the injured worker to an undesirable shift or job location
- Firing the injured worker
- Docking the injured worker’s rate of pay
If an employer takes any of these types of actions against an injured worker because he or she filed for workers’ compensation benefits, the employer may be liable to pay damages in a retaliation claim.=
Frivolous claims and retaliation
If a worker’s claim for workers’ compensation benefits was frivolous, the employer still cannot retaliate against him or her for filing the claim. A worker who is retaliated against by the employer after filing a frivolous claim may still file a retaliation claim against the employer. The timing of the adverse job action in relation to the filing of the claim will be important. The closer in time the termination or other adverse action happened to the claim’s filing, the likelier it is that a court will determine that the employer engaged in illegal retaliation.
Many employers claim that they had other valid reasons for terminating workers other than workers’ compensation claims. If the workers were treated differently than their coworkers, that will be relevant evidence. For example, if an employer fires a worker shortly after he or she filed a claim for coming into work late one time but has not fired other workers for coming into work late one or more times, the differential treatment of the fired worker may be evidence that the reason for the discharge was retaliation for the workers’ compensation claim.
Many retaliation claims involve an analysis of the fairness of how the employer treats employees in general followed by an examination of the claims made by the fired employees. Statements made by managers and specific situations that have occurred can be important. Some examples of situations and statements that may be important include the following:
- Statements that the number of filed workers’ compensation claims is too high
- Telling workers that they need to use their group or private medical insurance if they are hurt at work instead of filing workers’ compensation claims
- Saying that the company can fire a worker after his or her workers’ compensation claim has been denied
- Attempts to hide records showing that an accident happened at work
- Telling a worker to say that his or her injury happened away from the workplace
- Firing an injured worker immediately after his or her workers’ compensation claim is settled
- Terminating a worker shortly after he or she files a claim
- Telling employees that if the workers’ compensation claims that are filed rise above a certain percentage that people will start losing their jobs
These types of retaliation cases can result in substantial compensation for the terminated employees. Regardless of whether the worker’s claim was approved or denied, retaliation based on the claim is illegal.
How retaliation cases are proven
To prove a retaliation claim, an employee will need to present evidence showing a nexus between the employer’s unfair treatment and his or her workers’ compensation claim. Most employers claim that they made the termination decisions for valid reasons that were unrelated to the workers’ compensation claims. Employees will need to prove the following elements:
- The worker was entitled to file a workers’ compensation claim.
- The worker filed the claim within the right time and through the correct method.
- The employer took an adverse job action against the worker after the claim was filed.
- The adverse job action was directly related to the workers’ compensation claim.
If the employee is unable to show that the adverse job action was directly related to the claim that he or she filed, he or she will likely lose his or her retaliation case. An experienced attorney at Swartz Swidler can help to gather evidence to prove that the action taken by the employer was causally related to the worker’s compensation claim.
Get help from a workplace retaliation attorney
When workers win workers’ compensation retaliation claims, they should be given their jobs or comparable positions back, receive any promotions they should have been given, or receive compensation and punitive damages. Since proving employer retaliation can be difficult, workers should retain experienced retaliation and employment law attorneys. The attorneys at Swartz Swidler focus their legal practice on employment law matters, including retaliation claims. If you believe that your employer retaliated against you because you filed a workers’ compensation claim, contact Swartz Swidler to request a consultation by filling out our contact form or calling us at 856.685.7420.