Fight back against retaliation: when an employee has been fired for requesting workers' comp benefits, you can help right the wrong.

Injured workers' retaliation claims present a unique opportunity for plaintiff lawyers. Unlike employment discrimination cases, retaliation cases involve motives that juries readily understand: The idea that an employer may want to rid its workforce of employees who file costly compensation claims is plausible to jurors who may see corporate America as greedy.

Jurors are also quick to understand the highly offensive nature of retaliation. The idea that an employer could terminate an employee simply because he or she sought redress for a work-related injury offends fundamental notions of fairness.

The rights of injured workers who suffer retaliation are protected in almost every state by either statutory or common law. At least 31 states--including Connecticut, Kentucky, Michigan, North Carolina, and Texas, plus the District of Columbia--have enacted statutes specifically prohibiting retaliation. (1)

Where there is no specific statute, a claim may be brought under common law. Generally, most states adhere to the at-will employment doctrine: An employer may terminate an employee for any reason at any time or for no reason at all. Many states, however, recognize limited exceptions to this doctrine. One widely accepted exception is a termination that violates a clearly expressed public policy. This type of claim prevents employers from seeking refuge in the at-will doctrine when their actions erode the effect or purpose of the law and policy interests of the state.

Why does firing an employee who seeks protection under the workers' compensation statutes fall within the ambit of wrongful discharge in violation of public policy? Because workers should not have to choose between their livelihoods and their health. If an employer can intimidate employees or punish them for seeking redress, then the employer could render workers' protection under those statutes null.

Because of this, the vast majority of states that do not have specific statutory schemes prohibiting adverse employment actions--including Indiana, Montana, and Pennsylvania-nonetheless allow claims for wrongful discharge in violation of public policy for similar underlying conduct. (2) As one court recognized,

   The only effective way to prevent an employer from interfering with his
   employees' rights to seek compensation is to recognize that [the employee]
   has a cause of action for retaliatory discharge when the discharge is
   motivated by the desire to punish the employee for seeking benefits to
   which he is entitled by law. (3)

Georgia, Mississippi, and Rhode Island, however, refuse to recognize Such a claim. For instance, the Mississippi Supreme Court expressly declined to create a cause of action for wrongful discharge in violation of public policy-even in the face of a plainly retaliatory discharge. In Kelly v. Mississippi Valley Gas Co., the plaintiff filed a claim with the state workers' compensation commission after suffering a work-related injury. (4) Mississippi Valley Gas threatened to discharge him unless he withdrew the claim, and it made good on the threat when Kelly stood his ground. The Mississippi high court held that without a statute explicitly creating a claim for retaliatory discharge, it would not sanction any exception to the at-will employment doctrine.

In some states, a litigant may choose between the statutory remedy and a common law claim for wrongful discharge in violation of public policy, or plead both. Common law claims are often brought in jurisdictions where statutes do not confer a right to a trial by jury. This tactic is also used where the statutory remedy limits the types or extent of damages that a prevailing plaintiff can recover.

At trial, plaintiffs ultimately must show that their attempt to exercise rights under the workers' compensation statute was a motivating factor in the adverse employment decision. In some jurisdictions, the plaintiff is required to show that the termination would not have occurred but for the filing of the comp claim. (5)

Alabama, Hawaii, and Maryland require plaintiffs to prove that the workers' comp claim was the sole cause of the discharge. (6)

You will rarely face an employer who actually articulates a retaliatory motive. For that reason, plaintiffs are generally permitted to establish their cases circumstantially. Circumstantial proof may include the plaintiffs positive performance appraisals, history of promotions, difficulty collecting workers' compensation benefits, or a sudden change in the employer's attitude in the wake of a claim. (7)

Although the precise type of evidence required varies by jurisdiction, in order to prove a prima facie case, plaintiffs typically must first prove that they exercised a right conferred by state workers' comp law. Often, even if the claim has not been perfected, a cause of action for retaliation may exist. The law recognizes that employees should not be precluded from protection against retaliation simply because they have not completed all the necessary administrative steps.

In many jurisdictions, employees are protected by retaliation laws once the employer is aware that they intend to pursue a claim, or once employees have taken steps to file a claim, such as seeing a lawyer. In other jurisdictions, employees are protected by the law as soon as they are injured on the job. (8)

The rationale behind this latter approach is clear: An employer should not be permitted to escape liability under retaliation statutes by firing an employee before he or she has had a chance to file a claim. (9) Rejecting the employer's argument that it cannot retaliate for conduct in which the employee has not yet engaged, one court has noted that permitting an employer to terminate an injured worker as a preemptive strike defeats the policy consideration underlying retaliation claims. (10)

The standards for imposing liability may differ depending on whether the employer is self-insured. (11) For instance, if an employee completes paperwork the employer requires but the company agent does not perfect filing of the claim, an employee may be deemed to have filed and should not be precluded from pursuing a retaliation claim due to a technicality. (12)

In some states, employees are required to separately prove that the employer actually knew of the pending claim or of the employee's intent to file a claim. (13)

The second element of the prima facie case involves proving that the plaintiff suffered an adverse employment action. Some statutes proscribing workers' comp retaliation apply not only to retaliatory termination but also to any adverse employment action, including demotion, pay cuts, adverse changes in benefits, and transfers to less desirable shifts.

In states where a claim for retaliatory discharge is exclusively rooted in a public policy exception to at-will employment, the plaintiff will probably have to prove an actual or constructive discharge, since the at-will employment doctrine arises only in the context of termination decisions. A constructive discharge occurs when the employer makes the working environment so intolerable that a reasonable person would feel compelled to resign. (14) To determine whether a constructive discharge has occurred, find out whether the employee has received a pay cut or has been demoted, assigned unfavorable duties, harassed, or verbally abused.

Finally, a plaintiff must demonstrate a causal relationship between efforts to vindicate his or her rights under the workers' comp statute and the adverse employment action. The most important factor supporting a causal connection is proximity in time between the employee's claim and the adverse employment action. The shorter the time, the stronger the inference of retaliation.

Nonetheless, proximity in time alone will rarely establish causation. Additional evidence discrediting the employer's conduct is often required. (15) Look at all the facts and circumstances surrounding the employment relationship and the discharge to create an inference of causation. For example, an inference of causal connection may also be drawn from evidence that the employer criticized the employee's job performance or fabricated disciplinary issues after the work-related accident. A sudden change in performance ratings or a hostile attitude from management may allow a jury to conclude that retaliation occurred. Such evidence is particularly powerful when the plaintiff has a long history of superior work performance.

Evidence that the employer discouraged the employee from pursuing a claim is also compelling, as is evidence of a pattern of retaliatory conduct toward other workers who have filed compensation claims. For instance, in Boyd v. Winton Hills Medical & Health Center, Inc., an Ohio appeals court held that evidence that the plaintiff's boss had discussed discharging another employee who had previously filed a compensation claim supported an inference of retaliation. (16)

A plaintiff can establish causation for more subtle retaliation by pointing to the employer's failure to adhere to company policies regarding discharge, or by showing discriminatory treatment that the plaintiff suffered but other similarly situated, uninjured employees did not. (17)

Once the plaintiff sets forth a prima facie case, the employer has the opportunity to offer a legitimate, nonretaliatory explanation for the adverse action. For example, the employer may assert performance or attendance deficiencies as the "true" reason for its actions. (18) The plaintiff must then prove that the employer's reason is pretextual by showing that it was false, did not motivate the decision, or was insufficient to motivate the decision. Once the plaintiff disproves or calls into doubt the legitimacy of the employer's explanation, a jury can infer that retaliation was indeed the motivation for the action.

A plaintiff can potentially recover the full panoply of damages, including lost wages and benefits. Remedies will differ from state to state because of the varied statutory and common law schemes that apply to retaliatory discharge claims. The court may also award reinstatement or front pay. Many courts have permitted plaintiffs to recover for emotional distress. In Scott v. Otis Elevator Co., for example, the Florida Supreme Court held that because the nature of a wrongful discharge claim sounds in tort, tortlike damages are available. (19)

Punitive damages may also be warranted. Since the conduct underlying a retaliatory discharge is both intentional and motivated by ill will, courts have recognized that punitive damages are especially appropriate in these cases. For instance, in Montgomery Coca-Cola Bottling Co. v. Golson, the court sustained a punitive damages award based on the fact that the employer harassed, coerced, and intimidated the plaintiff and then fired him because he exercised his legal fight to collect compensation for a work-related injury. (20)

The facts underlying retaliatory discharge cases are especially offensive to juries. They see an employee who was in an untenable situation: He or she could either secure a health care payment or square off with an employer that wants to evade its responsibility to pay for workplace injuries. Retaliation cases redress egregious conduct that jeopardizes the protections afforded to all injured workers.

Notes

(1.) See, e.g., CONN. GEN. STAT. [section] 31-290a (2000); KY. REV. STAT. ANN. [section] 342.197 (Banks-Baldwin 2001); MICH. COMP. LAWS ANN. [section] 418.301(11) (West 2000); N.C. GEN. STAT. [subsection] 95-240-241 (2002); TEX. LAB. CODE ANN. [section] 451.001(1)-(4) (Vernon 2002); D.C. CODE ANN. [section] 32-1542 (2002). See also Children's Def. Fund v. District of Columbia Dep't of Employment Servs., 726 A.2d 1242 (D.C. 1999).

(2.) See, e.g., Monroe Guar. Ins. Co. v. Monroe, 677 N.E.2d 620 (Ind. Ct. App. 1997); Lueck v. United Parcel Serv., 851 P.2d 1041 (Mont. 1993); Shick v. Shirey, 716A.2d 1231 (Pa. 1998).

(3.) Firestone Textile Co. v. Meadows, 666 S.W.2d 730, 734 (Ky. 1984).

(4.) 397 So. 2d 874 (Miss. 1981).

(5.) Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d 542 (Tex. 1997).

(6.) ALA. CODE [section] 25-5-11.1 (2002); HAW. REV. STAT. [section] 378-32(2) (2001); MD. CODE ANN., LAB. & EMPL. [section] 9-1105(a)(2001).

(7.) C&D Robotics, Inc. v. Mann, 47 S.W.3d 194 (Tex. Ct. App. 2001).

(8.) See Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656 (Tex. Ct. App. 1997). Cf. Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933 (Ind. 1986) (public policy exception to at-will employment exists only when an employee actually makes a compensation claim).

(9.) Rholdon v. Bio-Medical Applications of Louisiana, Inc., 868 F. Supp. 179 (E.D. La. 1994).

(10.) Id.

(11.) See Moore v. Animal Fair Pet Ctr., 674 N.E.2d 1269 (Ohio 1995).

(12.) Id.

(13.) E.g. Doebele v. Sprint Corp., 157 E Supp. 2d 1191 (D. Kan. 2001).

(14.) Risch v. Friendly's Ice Cream Corp., 736 N.E.2d 30 (Ohio Ct. App. 1999).

(15.) Moore v. McDermott, Inc., 494 So. 2d 1159 (La. 1986).

(16.) 727 N.E.2d 137 (Ohio Ct. App. 1999).

(17.) Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex. Ct. App. 1993).

(18.) See Texas Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636-37 (Tex. 1995) (noting that the burden-shifting paradigm used in employment discrimination cases is appropriate for workers' compensation claims); Ortega v. IBP, Inc., No. 92-2351-KHV, 1994 WL 373888 (D. Kan. 1994).

(19.) 572 So. 2d 902 (Fla. 1990).

(20.) 725 So. 2d 996, (Ala. Ct. Civ. App. 1998); see also, Jensen v. Hercules, Inc., 524 N.W.2d 748 (Minn. Ct. App. 1994); Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273 (Mo. 1984).

Ann-Marie Ahern practices law with The Simon Law Firm in Cleveland.