It is illegal for an employer to retaliate against an employee for filing a workers' compensation claim. Despite this, retaliation happens — sometimes subtly, sometimes blatantly. Recognizing retaliation and acting quickly to document it is essential to protecting both your workers' comp claim and your employment rights.
What Counts as Workers' Comp Retaliation?
Retaliation includes any adverse employment action taken because you filed or plan to file a workers' comp claim. Common forms of retaliation include: termination or layoff, demotion or reduction in responsibilities, reduction in hours or pay, negative performance reviews that didn't exist before your injury, exclusion from meetings or opportunities, hostile treatment from supervisors, denial of promotions you were previously on track for, and creating a hostile work environment to pressure you to quit.
Proving Retaliation
The key to proving retaliation is the timing and circumstances of the adverse action. Strong indicators of retaliation include: the adverse action occurred shortly after you filed your claim (within weeks or months), you had a clean work record before your injury, your employer expressed hostility about your claim, the stated reason for termination appears pretextual, or other injured workers have experienced similar treatment. Document everything in writing as it happens.
What to Do If You're Retaliated Against
Take these steps immediately: write down exactly what happened with dates, times, and witnesses; save any emails, texts, or written communications; file a complaint with your state's workers' comp board or labor agency; consult an employment attorney (separate from your workers' comp attorney) about a retaliation lawsuit; and file for unemployment benefits if terminated.
Retaliation Claims Are Separate from Workers' Comp
A workers' comp retaliation claim is distinct from your workers' comp claim. It may be brought in civil court rather than the workers' comp system. Damages in retaliation cases can include: reinstatement to your job, back pay and benefits, compensatory damages, punitive damages (in egregious cases), and attorney's fees. These damages are in addition to any workers' comp benefits you're owed.
Protected Activities
You are protected from retaliation for: filing a workers' comp claim, reporting a workplace injury, testifying in another worker's workers' comp case, cooperating with a workers' comp investigation, or simply informing your employer of a work injury. You don't need to have formally filed a claim — the protection begins when you report an injury or indicate you plan to seek workers' comp benefits.
Need a workers' comp attorney? The information in this guide is general in nature. For advice about your specific case, consult a licensed workers' compensation attorney in your state. Free consultations are available — find an attorney near you.