Retaliation After Worker's Comp: How to Seek Compensation

When you are injured on the job, you have rights. Unfortunately, some employers will not want to provide you with the compensation that you deserve and may even attempt to punish you for seeking compensation in the first place. When this happens, you'll need the help of an attorney experienced with legal issues pertaining to employment law.

Consider Retaliation as Grounds for a Lawsuit

Retaliation is the act of penalizing an employee for engaging in an activity that is protected by law, such as seeking worker's compensation. For example, you may become injured while on the job and file a worker's compensation claim, only to discover that you have had your hours reduced, have not received a bonus, or have had your pay reduced.

Some workers are passed up for promotions and others have their employment terminated. You may find that your job responsibilities have abruptly changed in a way you do not agree with. Any of these could potentially be grounds for a lawsuit for retaliation.

Know What Isn't Covered

Some changes in the behavior of an employer are not actionable in court. For instance, if your employer stops behaving in a friendly manner toward you and instead begins behaving in a professional manner, even if you don't like this, it would not be something you could take legal action against.

Your employer may have even been advised by his or her attorney to modify how you two communicate with each other.

Know If You are Covered

You must be an employee in order to be protected by state law. Your employer might argue that you were actually an independent contractor. However, this would be difficult to support if your employer was required to maintain worker's compensation insurance.

To be protected from retaliation, your employer must either carry insurance or must participate in a state worker's compensation insurance program. You'll have an easier time arguing for retaliation if you have won your worker's compensation claim.

However, if you have lost this claim, you may still argue that your employer retaliated against you. This depends on whether your claim denial was a result of presenting knowingly false information.

Prepare for a Counter-Argument

Your employer will attempt to argue against the argument that they punished you for filing the claim by presenting an alternative explanation. For example, your employer may argue that you would have been punished regardless of whether you filed the claim. For that reason, you'll need to work with an experienced attorney who will help craft your argument for why you were the victim of retaliation.

The courts will seek to determine if the action taken against you was fair based on whether your employer had a legitimate reason to take this action. If your pay was reduced as part of a broader series of pay cuts affecting multiple coworkers, you may be unable to win a case for retaliation. This is referred to as causation.

Prove Causation

Causation is one of the more challenging things to prove. You will need to document exactly when you made your claim and also document when the acts of retaliation began. The more evidence you have to support your case, the better.

A common issue is when an employer seems pleased with your performance but claims that you have poor performance after the wrongful termination claim. If you can prove that your employer was pleased with your performance before the worker's compensation claim, you can demonstrate that the new and harsher performance review was for ulterior motives.

To make sure that you have the most solid defense possible when arguing that you were retaliated against, contact the Borbi, Clancy & Patrizi . We specialize in assisting those who were injured due to someone else's negligence. At the very least, you will understand your rights.