Steps to Prove Workers’ Comp Retaliation

If you were hurt at work, in Texas, and your employer is part of the state’s workers’ compensation program, you have the legal right to file a workers comp claim. But what if your boss or supervisor doesn’t want you to make a claim? What if they think that makes you a bad team player or that it would unfairly hurt company in some way?

If they act on those thoughts, you may be eligible to file a retaliation claim. Here’s some important information that you should consider if you feel you are being retaliated against for seeking the workers’ compensation benefits you need and deserve.

Do I Have to File for Workers’ Comp to File a Retaliation Claim?

While most retaliation claims come after you’ve filed for workers’ comp, that is not necessary in every situation. For example, if you discuss with a coworker the possibility of filing a claim, and that triggers a retaliation, your employer has broken the law.
Here are some actions that often trigger retaliation by an employer:
  • Talking to a lawyer
  • Hiring a lawyer
  • Research on rights in the workplace
  • Talking about retaliation
  • Supporting a co-worker’s workers’ comp claim
  • Testifying in a workers’ comp claim
  • Making a workers’ comp claim (of course)

Do I Have to be Fired to File a Retaliation Claim?

Retaliation can come in many forms and law says that anything that is an “adverse action” against you could be classified as retaliation. You might get demoted, suspended, disciplined, verbal harassment, threats, reports to immigration or law enforcement, or “blackballed” from other contractors in the business.
Although you do not have to be fired to file a retaliation claim, wrongful termination claims are usually the best because they cause economic harm. However, you have to be careful because many employers disguise their retaliatory acts as a “reduction in force”. For example, I have seen some instances where the employer found out that an employee got workers’ comp involved and then ended his employment as a “reduction in force” only to hire someone else two days later.

Are There Legal Requirements for Proving a Retaliation Case?

The key is that you have to prove your employer hurt you because of your workers’ comp action.
You do not have to prove that your workers’ comp claim is the only reason your employer harmed you, but you do have to prove that if it hadn’t been for your workers’ comp claim, they wouldn’t have taken that action against you.
For example, if your employer has a rule that you are fired after three absences, and you have three absences you probably don’t have a retaliation claim. But if your employer doesn’t have a strict rule for firing for absences, and you get fired for missing a day, but your coworker wasn’t fired even though they missed a day, you may have a case.

How Can I Prove My Employer’s Motives?

Evidence can look different in different cases. But here are some types of circumstantial evidence that have successfully been used in court in the past:
 
  • Statements that talk negatively about workers’ comp claims in general
  • Criticizing the employee about the injury. This could take the form of accusing them of lying about it or accusing them of nursing the injury to blaming them for getting injured in the first place.
  • Not following either the usual protocol or company rules in administering the “adverse action.”
  • Treating employees differently even though the only thing different is that one is involved in the workers’ comp claim
  • Anything that can show the excuse for the adverse action is false. This is often the most powerful, and easiest to find evidence for.

How Do I Gather Evidence for a Retaliation Claim?

The first thing you should do after your employer took an adverse action against you is to get documentation for the reason why.
Employers do not ordinarily admit when they are retaliating for a workers’ comp claim. Once you have a documented reason, you can then find evidence disproving that reason. You also want to ask around for others who have also done the things that allegedly got you terminated and see if they are treated differently.
The other thing you want to do is start a journal. Document everything: every date, every conversation, every adverse action. Keeping these details clear will help you and your lawyer significantly determine if they way the company treated you changed after you initiated your rights to seek workers’ comp benefits.

What Should I Do Next?

If you suspect your employer has retaliated against you, you should get a lawyer. A lawyer will help you identify if you have a strong enough case to pursue. They’ll also be able to help you know what kind of evidence you’ll need in your particular case.
And while we’re talking about workers’ comp in this case, it’s possible you are protected by other laws like the Family Medical Leave Act or the Americans with Disabilities Act. Your lawyer will be able to identify any other legal protections that may apply in your specific case.
The Packard Law Firm is committed to helping individuals and their families who have been hurt by an employer for exercising their workers’ rights. Reach out to us today.
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