If you’ve ever been injured on the job, you know how important workers’ compensation is to help cover medical expenses and lost wages. But what happens if your employer retaliates against you for filing a workers’ comp claim? Unfortunately, this is a common issue faced by many employees, known as workers’ comp retaliation.
Workers’ comp retaliation occurs when an employer takes adverse action against an employee for exercising their right to file a workers’ comp claim. This can include termination, demotion, reduction in pay or hours, or other forms of punishment. If you believe you experienced retaliation for filing a work comp claim, you should talk to a workers’ compensation attorney right away.
In this article, we will discuss what Workers’ Comp Retaliation is, how to recognize it, and what steps you can take to protect yourself.
What is workers’ compensation retaliation?
Workers’ compensation retaliation is when an employer takes adverse action against an employee who has filed a workers’ compensation claim. This adverse action can come in many forms, such as termination, demotion, or a reduction in hours or pay. It is important to note that workers’ compensation retaliation is illegal and employees have legal recourse if they experience it.
Is workers’ compensation retaliation illegal?
Yes. It is illegal to fire a worker for filing a workers’ compensation claim in Colorado. It is also unlawful to discharge an employee for reporting a workplace safety or health hazard. Terminating someone’s employment for either of these acts would constitute wrongful termination. Wrongful termination is a bad faith employment practice of firing a worker in violation of a law protecting an action or prohibiting an employer from using a specific reason to discharge the employee. Workers fired in violation of a state or federal statute can pursue damages according to the rights under each statute violated. A wrongful termination lawsuit may result in compensation for:
- Lost wages
- Back pay
- Lost earning opportunities
- Attorney’s fees and court costs
- Pain and suffering
- Economic losses
- Punitive damages
An attorney experienced with employment laws and workers’ compensation retaliation can help you determine if your discharge constitutes wrongful termination and what damages may be available to you. Termination is not the only form of retaliation you may face.
Examples of workers’ compensation retaliation
Some common examples of workers’ compensation retaliation include:
- Termination
- Demotion
- Reduction in pay or hours
- Transfer to a less desirable position or location
- Refusal to promote
- Increased scrutiny or surveillance
- Negative performance evaluations
- Harassment or intimidation
Any adverse employment action or hostile work environment created due to filing a claim or reporting a workplace accident may constitute an act of retaliation.
Signs of workers’ compensation retaliation
If you suspect that you are being retaliated against for filing a workers’ compensation claim, there are some signs to look out for. These can include:
- Sudden changes in your job duties or responsibilities
- Increased scrutiny or monitoring of your work
- Negative comments or behavior from your employer or coworkers
- Changes in your schedule or shift that negatively impact you
- Reduced pay or hours
- Denied requests for time off or accommodations
You should talk to an attorney immediately about any action you believe is retaliation. There are important steps you can take to protect your work comp claim, benefits and job. If you hired an attorney for your workers’ comp claim, you should talk to your attorney about possible retaliatory acts.
What to do if you experience workers’ compensation retaliation
If you believe that you are experiencing workers’ compensation retaliation, there are steps you can take to protect yourself. These include:
- Documenting any incidents of retaliation, including dates, times, and what happened
- Reporting the retaliation to your supervisor or HR department
- Contacting an attorney who specializes in workers’ compensation retaliation cases
- Filing a complaint with the appropriate government agency, such as the Equal Employment Opportunity Commission (EEOC) or the Occupational Safety and Health Administration (OSHA)
Can an injured worker quit their job?
An injured worker has the right to quit a job after suffering a work-related illness or injury. If you receive workers’ comp for that work-related condition, you can still leave if a better opportunity presents itself. In Colorado, the Division of Workers’ Compensation (DWC) determines benefits by your employment status when you suffered injury, not when you receive benefits. Your employer may owe work comp benefits even if you quit.
Sometimes employees want to quit instead of facing a hostile work environment or other forms of retaliation for filing a workers’ comp claim. You should think carefully and talk to an attorney before making a decision. You may be eligible for more compensation under Colorado law if you keep your job. If you take on other work that pays wages, it will reduce the amount of indemnity benefits from workers’ compensation. Indemnity benefits are payments for missed wages due to the injury or illness.
Additionally, if you quit your job you may harm a potential wrongful termination or retaliation claim. If retaliation or fear of retaliatory termination motives your decision to quit, you should definitely talk to a lawyer before making any decisions.
Laws protecting employees from retaliation
There are several laws in place to protect employees from workers’ compensation retaliation. These include:
- Occupational Safety and Health Act (OSHA)
- Americans with Disabilities Act (ADA)
- Family and Medical Leave Act (FMLA)
- Colorado Family and Medical Leave Act
- National Labor Relations Act (NLRA)
- State workers’ compensation laws
Depending upon the nature of your workplace accident injury or illness, your claim for leave may be covered by multiple federal and state laws.
Employees who suffer a workplace injury or illness may have overlapping rights to leave, modified work duties and other job changes under other statutes. For example, an employee who suffers a workplace injury and cannot perform her regular job duties may have a workers’ compensation claim, right to leave under FMLA and right to leave or other accommodations under the ADA and state anti-discrimination statutes. Each statute has its own rights, procedures and remedies. An experienced attorney can help you understand your rights and what steps you may need to take to protect your job.
It is common for workers’ compensation claims to involve disabling conditions as defined by the Americans with Disabilities Act (ADA/ADAAA) and the state anti-discrimination statute. Under these anti-disability discrimination laws, your employer cannot fire you if you are able to perform the essential functions of your job, even if you require reasonable accommodations for a disability.
The importance of documentation
Documentation is key when it comes to proving that you have experienced workers’ compensation retaliation. Make sure to keep detailed records of any incidents, as well as any communications with your employer or HR department. This can include emails, memos, and notes from meetings.
The role of an attorney in workers’ compensation retaliation cases
An experienced Denver attorney can play a crucial role in workers’ compensation retaliation cases. They can help you understand your legal rights and options, advise you on the strength of your case, and represent you in court if necessary. An attorney can also help you negotiate a settlement with your employer and ensure that your rights are protected throughout the process.
Conclusion
Workers’ compensation retaliation is a serious issue that can have long-lasting effects on an employee’s career and well-being. It is important to know your legal rights and options if you experience retaliation, and to take steps to protect yourself. By documenting any incidents of retaliation, reporting it to your employer or HR department, and seeking the help of an attorney if necessary, you can hold your employer accountable and protect your rights.
FAQs
- Can I be fired for filing a workers’ compensation claim? No, it is illegal for an employer to retaliate against an employee for filing a workers’ compensation claim.
- What should I do if I experience workers’ compensation retaliation? Document any incidents of retaliation, report it to your supervisor or HR department, contact an attorney who specializes in workers’ compensation retaliation cases, and file a complaint with the appropriate government agency.
- What laws protect employees from workers’ compensation retaliation? The Occupational Safety and Health (OSH) Act, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the National Labor Relations Act (NLRA), and state workers’ compensation laws.
- What role does documentation play in workers’ compensation retaliation cases? Documentation is key when it comes to proving that you have experienced workers’ compensation retaliation. Keep detailed records of any incidents, as well as any communications with your employer or HR department.
- How can I prevent workers’ compensation retaliation? Know your rights under state and federal law, keep detailed records of any work-related injuries or illnesses, report any injuries or illnesses to your supervisor or HR department immediately, and communicate openly and honestly with your employer about your injury or illness and any work restrictions.
