Worker’s Comp Retaliation

WORKERS COMPENSATION RETALIATION

When they sustain an injury on the job, many workers may worry about worker’s compensation retaliation.

But what is worker’s comp retaliation? Is there any legal recourse when you experience it?

When you are applying for worker’s compensation, the best course of action is to simply know your rights as a worker. In this post, worker’s compensation attorneys at Gordon & Gordon will try to answer all your questions about worker’s comp retaliation. We will talk about situations where workers may apply for worker’s comp, as well as what to do if you believe you are experiencing worker’s comp retaliation. 

What is Workers Compensation?

Before we delve too much into worker’s compensation retaliation, let’s have a quick refresher course on exactly what worker’s compensation is.

Put simply, a worker may apply for worker’s compensation when they sustain an injury on the job. This money can help the worker pay their bills until they can return to their job. The amount of money the worker receives will vary depending on the type of injury and its extent. 

The state of Louisiana requires nearly all employers to carry worker’s compensation insurance. This insurance policy pays out money to the workers who sustain injuries on the job. 

However, many employers will do whatever they can to avoid claims on their worker’s comp insurance. Thus, the process for applying for worker’s comp can be fraught with complications. One of the biggest complications workers fear when applying for worker’s comp is worker’s compensation retaliation.

What is Worker’s Compensation Retaliation?

Retaliation is when an employer punishes an employee for engaging in a protected activity.

Worker’s comp retaliation occurs when an employer punishes a worker for applying for worker’s comp. Sometimes, retaliation can occur when an employee even attempts to file a worker’s compensation claim. 

The most common and concerning form of retaliation is termination. But worker’s comp retaliation can take other forms: a demotion, a pay cut, or unwarranted discipline may qualify. However, these are much more difficult to prove. The vast majority of worker’s compensation retaliation claims in Louisiana involve wrongful termination. 

In Louisiana, the law prohibits employers from firing an employee for filing a worker’s compensation claim. State law guarantees the rights of injured workers to medical care and lost wages. 

Louisiana law also prohibits employers from denying employment to someone because they have made a worker’s compensation claim in the past. 

How Do I Prove Worker’s Compensation Retaliation?

If you suspect an employer is engaging in worker’s compensation retaliation, you can take them to court. If you win, you can recover whatever amount of money the employer would have paid you, if not for the retaliation. The court will determine this amount from the job’s one-year salary, plus any reasonable attorney’s fees and court costs. 

However, proving a worker’s comp retaliation claim isn’t always easy. If the court decides a worker’s claim is purposely frivolous or false, there could be consequences. The court could hold a worker responsible for damages to the employer. 

Workers in Louisiana must bring their worker’s comp retaliation claims in a district court, not a worker’s compensation court. This is because worker’s comp retaliation claims that involve termination fall under Louisiana’s wrongful termination laws. 

What Do I Need to Prove in Court?

In order to win a worker’s compensation retaliation claim, you have to prove that your employer took unfair action against you due to your worker’s compensation claim. The employee must present either:

  • Direct evidence that the assertion of the worker’s compensation claim was the reason for the termination; or
  • Circumstantial evidence that is sufficient to establish more probably than not that the reason for the discharge was the assertion of the worker’s compensation claim

There is a statute of limitations for worker’s comp retaliation. An employee must file a lawsuit within a year of the retaliatory action, or they cannot file a lawsuit at all. 

Can My Employer Fire Me Because I’m Receiving Worker’s Comp?

As we mentioned earlier, no. Your employer cannot fire you because you are receiving worker’s comp. 

That does not mean your employer cannot fire you while you are receiving worker’s comp. Sustaining an injury at work, unfortunately, does not protect you from termination. If, for example, your company goes through a round of layoffs while you are on worker’s compensation, your employer can lay you off or terminate you. As long as they don’t fire you because you are on worker’s compensation, it may not be worker’s compensation retaliation in the court’s eyes.

In addition, Louisiana does not prohibit employers from terminating employees who can no longer perform their job functions. If a physician finds that a worker can no longer perform their job functions due to their injury, an employer can fire that employee. 

What Are Valid Reasons for Termination in Louisiana Worker’s Compensation?

There are valid reasons for an employer to terminate an employee on worker’s compensation. We’ve already talked about a few of them: if the employee cannot perform their job functions due to the injury, there is no wrongful termination. 

Remember, if a court believes your wrongful termination suit is purposely frivolous, there could be monetary consequences.

In addition to the inability to perform job functions, an employer may provide other valid reasons for terminating an employee. If an employer can prove any of these, a worker is unlikely to win their claim. Some valid reasons for termination include:

  • The employee has failed to complete their job duties before the injury 
  • The employee demonstrated poor performance before the injury
  • The employer is terminating a contract employee for reasons related to the contract
  • The employee is part of a labor union, and the reason for termination is in the union’s collective bargaining agreement 
  • Violation of company policy 
  • Failing a drug test or other criminal activity 
  • The employer needs to cut down the number of employees for financial reasons

Contact Gordon & Gordon

It is always confusing and upsetting to sustain an injury that prevents you from working. It is even more so if your employer terminates you during this period.If you believe you may be suffering worker’s comp retaliation in Northwest Louisiana, contact Gordon & Gordon by calling 318.716.HELP. You can also leave us a message on our website.



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