How To Handle Employer Retaliation During the Appeals Process

Workers’ comp provides compensation to employees for work-related injuries and illnesses. It covers medical expenses and lost wages for injured workers. But, sometimes, this protection comes at a cost. Some employers don’t take kindly to a worker’s quest for benefits, and they may retaliate. Retaliation for a workers’ compensation claim is illegal. You have a right to report workplace injuries without fear of repercussions.

If you experience retaliation during the workers’ comp claim and appeal process, talk to a workers’ compensation lawyer to learn about your rights.

Employer Retaliation

Employer retaliation occurs when your boss takes adverse action against you in response to your claim. Adverse employment actions cover a wide range. Retaliation includes:

• Reduced work hours
• Verbal abuse and threats
• Sudden negative performance evaluations
• Demotions
• Termination of employment

Retaliation claims aren’t unusual. According to the U.S. Equal Employment Opportunity Commission (EEOC), It’s a common finding in discrimination cases in the federal sector.

Legal Protections Against Retaliation

Federal and state laws protect you from retaliation when you file a workers’ compensation claim.

State Workers’ Compensation Laws

Filing a workers’ comp claim and appealing an unfavorable decision are protected activities in all states. The laws vary by state but generally prohibit any adverse employment actions because you filed a claim. These anti-retaliation protections often include civil and criminal liability for employers.

In Maryland, it’s a misdemeanor criminal offense for an employer to fire you for filing a workers’ compensation claim.

In Texas, it’s unlawful for an employer to fire or discriminate against you if you’ve filed a workers’ comp claim in good faith or hired a lawyer to represent you. If your rights are violated, you can file a civil lawsuit asking for the following:

• Job reinstatement
• Lost wages
• Benefits
• Punitive damages

Florida and South Dakota also allow workers to file civil lawsuits over retaliation.

Retaliation claims can be heard by administrative agencies. In California, you can take your retaliation claim to the Workers’ Compensation Appeals Board. You can ask for job reinstatement, back pay, and benefits. California employers may also be liable for a criminal misdemeanor if they retaliate against you.

Similarly, the New York Worker’s Compensation Board handles retaliation complaints in New York. It can order reinstatement and other remedies.

Federal Protections

Workers’ compensation is largely governed by state law. However, federal laws like the Occupational Safety and Health Act (OSH) protect you from retaliation. The OSH Act prohibits employers from retaliating against employees who report workplace injuries or unsafe conditions. You can file a retaliation complaint under the OSH Act with the Occupational and Safety Health Administration (OSHA).

Whistleblower Laws

Retaliation can overlap with whistleblower protections if a hazardous work condition causes the injury. Federal and state whistleblower laws protect employees who report unsafe practices.

Anti-Discrimination Laws

Retaliation protections may also be available under the Americans with Disabilities Act (ADA). This happens when a workplace injury causes temporary or permanent disability. Suppose you request a reasonable accommodation, and your employer retaliates. The ADA can provide legal support.

Title VII of the Civil Rights Act generally doesn’t provide legal protection against employer retaliation for filing a workers’ compensation claim. It covers discrimination based on race, color, religion, sex, and national origin, among other things.

Legitimate Non-Retaliatory Reason for Discipline

Legal protection isn’t absolute. Employers can discipline you for non-discriminatory, non-retaliatory reasons, even in the face of protected activity.

Steps To Take if Retaliation Occurs

You can take several steps when you suspect your employer of retaliation.

• Gather evidence that supports your claim of retaliation: Keep detailed records of the retaliatory actions. Include information on each incident, such as the date and names of witnesses, including co-workers. Keep all communications related to the retaliation. 
• Report retaliation internally: If your company has an employee handbook, check for instructions on reporting retaliation. Follow the procedure for filing a discrimination complaint. If your company doesn’t have a handbook, consider reporting the retaliation to your human resources department.
• Contact the state workers’ compensation agency handling your claim or appeal: You can also file a complaint with a federal agency.
• Seek legal advice: Talk to a workers’ compensation attorney. You can discuss your options, including filing an employment discrimination lawsuit.
• Check the statute of limitations: Many states have specific deadlines for filing a retaliation claim. Some states allow two years to file a retaliation claim, while others allow only one year.

Seek Legal Help for Your Case

Retaliation cases can be complex. An experienced workers’ comp attorney is familiar with employment law. Your lawyer can guide you on how to handle your employment discrimination issue. If you want to take legal action against your employer, speak with an experienced workers’ comp attorney for legal advice.