Lay Offs And Firings And Retaliation—Oh, My! What To Know About Losing Your Job While On Workers' Comp
The general rule is that employers can't retaliate against you for filing a workers' compensation claim by laying you off or firing you. However, your employer can still lay you off or fire you if the change in your employment is unrelated to your workers' comp claim. This is a critical distinction that can be hard to understand. Here's what you need to consider in order to really understand your situation.
Is the company having trouble?
If the company is having financial problems, there's every possibility that people will be laid off or let go from their positions. If the company is undergoing reorganization efforts, there's a possibility that your job will be reorganized out of being—which could mean an end to your employment unless there's another position that the company has to offer you. While it isn't legal for a company to discriminate against you because of your workers' comp claim, your workers' comp claim also doesn't shield you from a job loss if it is something that would have occurred anyhow.
If you are told that your job is being phased out or you're going to be one of the people who is laid off because of the company's problems, pay careful attention to the reasons given to see if it seems like you are being discriminated against. In some cases, your employer may not even realize that's what he or she is doing. For example, if your employer tells you that you were chosen for the lay off because "you have money coming in from workers' comp" and your coworker doesn't, that's discrimination. Look for other signs that point to retaliation or discrimination, like everyone from your section being moved into other section (except you) and people with less experience and less seniority in the same position as yours being kept (while you're let go).
Have you been a problem employee?
You can also be fired if you were a problem employee before your workers' comp claim ever started, as long as the workers' comp claim had nothing to do with your firing. However—and this is important to understand—the "last straw," or the event that results in your firing, can be related to the incident in which you were injured.
For example, if you work in a major retail company's warehouse, you know that safety is a concern. There are usually strict safety protocols that should be followed all the time—but a lot of workers will skirt around the rules in order to get work done faster. For example, it isn't uncommon for inspectors to catch employees without the personal protective equipment they're supposed to wear. If you were written up several times in the past for not wearing a helmet and steel-toed boots while on the warehouse floor, you can be written up again if you weren't wearing them when you were injured. If that happens to be your last chance, per company rules, you can be fired.
On the other hand, if you've never been written up for not wearing the right boots and your shift manager regularly turns a blind eye when workers ignore the rules because he or she knows that they don't like wearing protective equipment that's heavy and confining at work, that's a good sign that you're being retaliated against.
If you believe that you were laid off or fired as an act of retaliation for filing a workers' comp claim, contact an attorney, like Williams Williams & Bembenek PC, right away to discuss the situation.