You were injured at work. You filed a workers’ compensation claim. Then everything changed. Maybe you were demoted. Maybe you were left out of important meetings. Maybe opportunities for collaboration dried up. Maybe even you were fired.
Retaliation for filing a workers’ comp claim is illegal. But proving retaliation can be difficult. Here’s what you need to know.
What Can Trigger Retaliation?
Legally, retaliation is a response to something. Normally we think of retaliation occurring directly after you’ve filed a workers’ compensation claim. But retaliation can occur at many different points in the process. You should be aware of retaliation in response to any of these events:
- Seeking legal advice on your workplace rights.
- Talking with coworkers about possibly filing a workers’ compensation claim.
- Making a workers’ compensation claim.
- Notifying anyone in the company about suspicion of retaliation.
- Hiring a lawyer to represent you in the claim.
- Starting an administrative proceeding about a workers’ compensation claim.
- Supporting another worker’s workers’ compensation claim.
- Testifying or agreeing to testify regarding a workers’ compensation claim.
What Counts as Retaliation?
For you to prove that you were retaliated against, you need to demonstrate three things happened:
- Your employer knew about your action from the previous section (usually filing a workers’ compensation claim)
- Your employer took “an adverse action” against you.
- Your employer took that adverse action because of the action you took
You will want to document everything that happens in relation to those three things. Proving that your employer knew about the action you took is the least complicated of those three, so let’s focus on the other two.
What is an “Adverse Action”?
To prove that your employer retaliated against you, you need to prove that they took some specific action that harmed you. This action must “dissuade a reasonable worker” from making a workers’ compensation claim. Adverse actions include:
- Being fired
- Being demoted
- Being suspended
- Being harassed or threatened
- Receiving unequal discipline
- Receiving reduced pay or hours
- Losing opportunities for promotions
- Receiving unfair treatment for vacations, leaves of absences or shift change requests
- Being threatened with reports to immigration or other law enforcement
The adverse action does not have to be on that list to qualify.
How to Prove the Adverse Action was Caused by Your Claim
The most difficult part of proving that you’ve been retaliated against is proving that the reason for the negative behavior from your employer is because of your workers’ compensation claim, and not for some other reason.
You must prove not only that your claim was part of the reason for the adverse action, but that if it hadn’t been for your claim, your employer would not have taken the adverse action. That’s often referred to as the “but for” cause.
Because proving this is so difficult, however, there are lots of factors that the courts have determined might lead them to conclude that the adverse action was retaliatory. These include:
- Criticizing the employee for the injury, or expressing disbelief that it’s real
- Not following the usual company protocol
- Treating employees in otherwise similar situations differently
- Evidence that the excuse for the adverse action is false
If I Suspect Retaliation, What Should I Do?
Document everything. Hopefully, the above information will point you in the direction of what is most important to document, but you should document anything that is related to your claim. Find any evidence of past actions that show a pattern different from what you are now experiencing.
Speak to your supervisor. You want to let your supervisor (or HR representative) give their explanation for the adverse action. This could help you two ways. First, it’s possible that having the explanation resolves the matter and possibly clears up the confusion. But second, once they’ve given you an excuse, you can find evidence that the excuse is not true, and merely a cover for retaliation.
Finally, speak to a lawyer. Not only will a lawyer be able to tell you the strengths of your case, but they’ll also be able to help you find the correct documentation. In addition, they will know if you are protected by other relevant laws like the ADA or FMLA that may protect you even if there’s not enough evidence for retaliation.
The Packard Law Firm is committed to helping individuals and their families who have been targeted by their employers for exercising their rights to workers’ compensations claims. Reach out to us today.