Employer can get in trouble when their managers retaliate against an employee who files a workers compensation claim. In some states the employee may bring wrongful termination and other lawsuits. In other states, like California, the remedy is within the work comp system, known as a 132(a) claim. When filing a Section 132(a) claim, “in addition to establishing that the industrial injury has resulted in some detriment, the worker must also prove that he or she was singled out for disadvantageous treatment because of the injury.” This is typical of language found in other states.
Conduct that will not result in a retaliation claim:
Where there is truly no work available.
Where the employee is unfit for duty because they will risk further injury or aggravation to an injury.
Where there are safety issues related to the employee or third parties.
Where there’s a business necessity (such as lack of funds or a change in company direction).
If they were terminated for cause (and consistently with how others were treated in engaging in similar wrongdoing).
If there’s a layoff or reduction in force.
Conduct that can generate claims:
If there/s a change in pay, hours or duties without a legitimate business justification.
Where they were “singled out” or otherwise treated “differently” than others causing discrimination claims.
Where the company makes return-to-work or light-duty decisions without medical proof.
Where employees are placed in demeaning light duty positions.
Forgetting the ADA and FMLA also impact on return to work decisions.
