Employer Retaliation
An employer has the legal and ethical duty not to retaliate against an employee who exercises his or her workplace rights. Retaliation in employment is defined as any employer action that has a negative effect on an employee taken because he or she asserted workplace rights. Federal and most states' laws prohibit an employer from discriminating against a workers' compensation claimant or against any other employee who offers supporting testimony on behalf of a workers' compensation claimant.
If you are an employer faced with workers compensation responsibilities, you should consult an attorney for guidance. A workers' compensation lawyer at our firm can advise you about your obligations in the workers' compensation context.
What is Retaliation?
Examples of employment retaliation include:
- Undeservedly poor performance report or employment reference
- Threats or harassment
- Negative effect on employment benefits such as paid vacation or insurance
- Loss of privileges or responsibilities
- Implementation of an undesirable schedule change
- Pay change
- Demotion or failure to promote
- Reassignment to tasks that are unpleasant, beyond job description or dangerous
- Dismissal
What is not Retaliation?
The law does not prohibit an employer from investigating a workers' compensation claim that might not have been filed in good faith. In fact, the employer has an affirmative duty to investigate the circumstances of all workplace injuries of which it becomes aware. Thorough employer investigation allows smooth, timely and fair administration of workers' compensation claims, as well as enhancing employer knowledge of unsafe working conditions needing correction. In addition, state law may require an employer to file a report about every accident investigation.
Generally, employers retain the legitimate right to appropriately dismiss or discipline employees found to have genuine performance issues, such as dishonest behavior or bad faith filing of workers' compensation claims. Employers taking disciplinary action should carefully and in detail document their reasons to protect themselves in case of later employee lawsuits.
Remedies for Retaliation
Legal remedies vary from state to state for the employee found to have been retaliated against for asserting workers' compensation rights. Even the definition of illegal workers' compensation retaliation varies by state. Most states provide a procedure for complaining to the state workers' compensation administrative agency and/or for a civil lawsuit. Employers found to have retaliated could be subject to civil fines, money damages or attorneys' fees, and may be ordered to reinstate wrongfully discharged employees.
Conclusion
Employers must carefully administer their workers' compensation programs to ensure that injured or sickened employees who become workers' compensation claimants are subject to open and fair procedures for resolving claims. An employer can retain the counsel of an experienced workers' compensation attorney from our firm to clearly outline employer responsibilities and explain how to fulfill the duty not to retaliate.
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