For an employee to establish a claim of retaliatory discharge, the employee must show the existence of an employment relationship, an on the job injury, knowledge of the injury on the part of the employer, and subsequent termination of employment based solely upon the employee filing a worker’s compensation claim because of the injury—Alabama Power v. Aldridge, 854 So. 2d 554 (Ala. 2002).
What is retaliatory discharge?
Workers who are injured on the job usually worry about whether they will be fired for filing a workers’ compensation claim.
It is illegal for an employer to fire you because you filed a workers’ compensation claim. This is called “retaliatory discharge.”
Generally, you can only file a retaliation or discrimination claim if your employer fires you for filing a workers’ comp claim. You cannot file a claim if your employer simply retaliates against you in some other way, such as by giving you fewer hours or lower pay.
You might be able to sue your employer for damages if they fired you because you filed a workers’ compensation claim.
Do I have a case for a wrongful termination lawsuit?
You may have a strong case for wrongful termination if you can prove that it was solely due to having filed a worker’s compensation claim.
These evidence include:
- Situations such as the employer’s knowledge of the claim by those deciding to terminate
- Employers showing a negative attitude toward the injury
- Employer’s failure to adhere to company policies
- Employers’ different treatment as compared to other employees in similar situations
- Sudden changes in the work performance evaluations following a claim for workers’ compensation
- Other evidence showing that the stated reason for the termination differed from the actual reason. This evidence is circumstantial and may, in aggregate, prove that the claim for retaliatory discharge is valid.
These factors are not all-inclusive. Some may be used to show that you have been wrongfully terminated.
Once an employee can show this evidence, the employer has to refute this evidence and show that there was a legitimate reason for firing the employee that does not include termination due to the workers’ compensation claim. Therefore, to file a claim for retaliatory discharge, you must show that the termination was just that, retaliatory.
These factors and others may be used separately or together to show a court that you have been wrongfully terminated for filing a workers’ compensation claim.
What is workplace retaliation?
Retaliation occurs when an employer acts in response to an employee engaging in a legally protected activity. Examples of these legally protected activities are filing a complaint with human resources about sexual harassment or reporting hazardous conditions in the workplace to the Occupational Safety and Health Administration (OSHA).
Whether you complain to an internal, state, or federal source, your complaint is not grounds for adverse treatment.
Retaliation can include any negative treatment or action on the job, no matter how subtle, but the circumstances of the situation must be considered.
The Equal Employment Opportunity Commission (EEOC) gives several examples that, depending on the facts of the specific case, are considered retaliation by an employer:
- Giving a lower score or rating on a performance evaluation than is earned
- Transferring an employee to an undesirable/less desirable position or location
- Exhibiting physical or verbal abuse
- Filing reports or threatening to file reports against an employee, such as police reports or immigration status
- Purposefully making work more difficult (e.g., changing an employee’s work schedule to conflict with family responsibilities that the employer is aware of)
If the actions an employer takes against you, as the employee, would deter a reasonable person in the situation from making a complaint in the future, it may constitute illegal retaliation.
How long do I have to file a whistleblower complaint?
The first thing to be aware of when considering pursuing legal action against retaliation is time. OSHA administers more than twenty whistleblower statutes. These are statutes that protect an employee who files a complaint about an employer’s failure to comply with safety and health standards.
Each of these statutes varies in the amount of time an employee has to file a complaint of retaliation, which ranges from 30 days to 180 days. Within this time frame, you can file with OSHA online, through fax, email, mail, or telephone, or in person at one of the local OSHA regional offices.
When filing a complaint, though not required, it’s helpful to have some documentation on hand of the retaliation. Such documents could include:
- Copies of termination letters
- Copies of pay stubs
- Documentation of the original complaint that gave rise to the adverse treatment
- Copies of disciplinary actions
OSHA will then conduct interviews with each complainant to determine the need for further investigation. A determination is then made regarding the remedy that will restore you, the employee, back to the status you maintained before the adverse retaliation.
While the best place to start when faced with retaliation is your immediate supervisor or human resources representative, consider contacting an experienced employment lawyer who knows your rights and will ensure you’re given fair treatment.
Wrongful termination frequently asked questions
Can you sue a company for wrongful termination?
Pursuant to the Alabama Workers’ Compensation Act, if a person has been terminated for pursuing a workers’ compensation claim, they may be able to maintain a legal action under Alabama Code Section 25-5-11.1, for retaliatory discharge. This statutory law gives a terminated employee the right to sue the former employer for the sole reason of being terminated because they are maintaining a workers’ compensation claim.
What’s the average wrongful termination settlement?
Cases brought for retaliatory discharge are very difficult to prove. Because Alabama is an at-will employment state, a person can be fired for virtually any reason or no reason, and without prior notice. Each of these cases are evaluated independently based on the facts and evidence that have transpired.
What would I do if I was unfairly fired?
If you are terminated unfairly, there are several legal options to be considered. Filing for unemployment compensation and pursuing a charge of discrimination through the Equal Employment Opportunity Commission are just a few. We highly recommend that you consult with a lawyer who is experienced with employment matters to thoroughly analyze your legal rights.
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