A workers compensation claim can be a costly expense for your employer, which is why some employers may be tempted to terminate an employee before their claim goes through. Most states have laws that prevent employers from taking such retaliatory measures, but that doesn't stop some employers from taking those actions. If your employer gives you the boot after you've filed for workers' comp, you'll want to know how you can fight back.
You'll Need Proof
In order to win your case, you must be able to prove that you were a victim of a retaliatory firing in violation of your state's workers compensation law. Although the specific laws governing your state may vary, there are basic criteria you must meet before your retaliation claim can move forward:
- You must be an employee who is entitled to receive workers comp benefits. Independent contractors are usually exempt from receiving workers compensation.
- You must have filed for workers comp prior to your termination.
- You must either be terminated from your job or have suffered an adverse change in your employment, such as a demotion or reduced hours for wage-earning employees.
- There must be an established link between your employer terminating you and your filing for workers comp. This is usually the most difficult criteria to meet when it comes to retaliation claims.
The overall difficulty of proving a retaliation claim usually varies from state to state. Some states may require that your actions be the sole factor in your employer's decision to fire you, while others only require your actions to play either a significant or even minor role in that decision. Again, the required standard usually depends on your state's statutes.
You'll Need to File Quickly
If you believe you have grounds for a retaliation claim, it's usually best to file it as soon as it occurs. The statute of limitations for filing a retaliatory claim varies from state to state. North Carolina and Ohio, for example, both give employees 180 days from the date of the retaliatory action to file a complaint with the appropriate agency. Ohio statutes also specify that employees must provide written notice of their intent to sue within 90 days of the retaliatory action.
Many retaliatory firing claims have been lost due to untimely filings, so it's always a good idea to file as soon as possible. Your attorney will have more detailed information on the various time limits that apply for your specific state.
You May Need to Mitigate Your Damages
Some states may require you to make a concerted effort to reduce the amount of damages following your wrongful termination. In the case of a retaliatory firing resulting in lost wages, you'll need to seek out another form of employment to reduce your lost wage damages. In order to show good faith to the court, you should carefully and comprehensively document your efforts to search for other employment. Even if you don't land a new job, you'll be able to show the court that you've made the effort to mitigate your lost wage damages.
When a Firing Isn't Retaliatory
Not every termination that occurs while you're on workers comp can be classified as a retaliatory firing. You can still be fired while on workers comp as long as there's a legitimate reason that's not specifically related to your workers comp claim. These reasons can include:
- Poor performance
- Violation of company policy
- Reduction in workforce
Fortunately, being fired or laid off from your job does not immediately terminate your workers compensation benefits. In most cases, you'll continue to receive your benefits until you've reached the maximum benefits cap or you've completely recovered from your injury. Contact a lawyer from a firm like Gilbert, Blaszcyk & Milburn LLP for more assistance.