Employer Retaliation After Filing A Work Comp Claim

November 3, 2021

An employee may be eligible for compensation after an injury at work, but filing a work comp claim can put the employee at risk of hostile actions from the employer. Some employers are often hesitant to pay the cost and may try to discourage or penalize an employee for making such a claim. State and federal laws, however, bar employers from taking retaliatory actions against employees who pursue their legal rights.

Employer Retaliatory Behavior

Employer retaliation happens when an employer punishes an employee, or employees, for participating in a protected activity. When it comes to workers’ comp, retaliation refers to an employer punishing an employee for claiming workers’ compensation or even trying to file a claim in some instances.

Forms of Employer Retaliatory Behaviors

Workers’ comp laws prohibit employers from retaliating against employees injured in the workplace. The following are the most common employer retaliatory behaviors:

  • Termination

Under workers’ comp laws, injured workers give up their rights to sue an employer in exchange for compensation for their injuries. If an employee injured in a workplace accident was dismissed or laid off for seeking workers’ comp benefits, then he or she can file a retaliatory discharge case against the employer.

  • Discriminatory Treatment

Workers’ comp laws bar employers from discriminating against employees for exercising their legal rights. Discriminatory treatment at work can come in a variety of forms, from disciplinary action, demotion, salary reduction, getting ignored for promotion, to getting transferred to another department.

  • Workplace Harassment

Employers may constantly threaten employees who file or attempt to file a claim. They may, for instance, blacklist them from future promotions or employment opportunities. They may also threaten them with deportation, especially for foreign workers.

An aggressive deportation defense attorney is the best bet at ensuring the rights of a foreign employee who is facing deportation from the U.S. are protected. The attorney can investigate the specifics of the deportation case, gather the necessary information, and present a strong defense against the case.

  • Forced Leave

Some employers may force an injured employee to utilize or give up amassed paid time off, pension benefits, paid medical benefits, paid sick leave, or any other earned income in exchange for workers’ comp benefits.

Proof of Retaliation

An employee has the burden of proving that the employer has taken retaliatory actions against him or her for seeking workers’ comp benefits. The employee must have enough evidence to prove beyond a reasonable doubt that his or her employer’s adverse actions were because of the employee filing a workers’ comp claim after workplace injuries. An employer retaliation claim must meet the following requirements:

  • The injured employee was eligible for workers’ comp benefits;
  • The injured employee participated in a protected activity – filing the claim;
  • The injured employee has undergone significant employment-related penalties, including job termination;
  • The injured employee’s protected activity was a motivating factor in the employer’s actions.

Taking Action After Employer’s Retaliatory Behavior

An employee who is facing retaliatory action from the employee because of filing or trying to file a workers’ comp claim should make an official complaint with the specific state Fair Employment Department. He or she can also bring a civil lawsuit against the employer. The employee should move with speed to file the complaint or lawsuit within the applicable statutes of limitations for doing so.

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Andi Perullo de Ledesma

I am Andi Perullo de Ledesma, a Chinese Medicine Doctor and Travel Photojournalist in Charlotte, NC. I am also wife to Lucas and mother to Joaquín. Follow us as we explore life and the world one beautiful adventure at a time.

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