Even when you have been granted the workers’ compensation benefits that you need, things may still not be smooth sailing. Your employer may still have something to say, regardless of whether the law allows it or not. There are even cases where you may find yourself out of a job after filing a claim.
Of course, your employer would never say that they are firing you for filing a claim. You would need a lawyer to help prove that you are a victim of discrimination or retaliation. The Wilmington workers’ comp attorneys at Horton & Mendez are ready to fight for you. Contact us to learn more about how we can help.
The Employer Cannot Retaliate Against You for Filing a Workers’ Compensation Claim
The question of whether your job will be available for you when you return home is a complex one, with no one-size-fits-all answer. Some ironclad legal rules apply, but everything depends on your own situation. You need an attorney to help develop the facts and tell your side of the story.
The general rule is that you have a legal right to file a workers’ compensation claim when you have been injured on the job. Your employer cannot retaliate against you through any adverse employment action, which includes firing you from your job. While you may be considered an “at will” employee, your employer is forbidden from firing you for filing a claim, even if it means that they will pay more in workers’ compensation premiums. You can file a lawsuit against them for discrimination if they have broken this law.
There Are Times When Your Employer Can Take Action Against You
However, there are some circumstances under which an employer can fire you when you have gotten hurt at work.
Breaking protocol
Although workers’ comp is a no-fault system, the accident that injured you could have been your fault. You may not have followed safety protocol or did something wrong that caused the accident. In that case, the employer’s investigation may reveal your own fault. Then, you could be fired for getting hurt at work.
While you may be able to receive benefits, you may not be able to return to your job because of what happened. The employer has a right to dismiss you for misconduct or failure to follow employment policies.
Unable to perform your current role
There are other reasons why you may legally be fired after filing a workers’ compensation claim. One is that you may not be able to return to the job that you held before the injury.
If you had a physical job, you may no longer be able to perform your duties.
While you may have work restrictions, there is nothing to say that the employer can or will allow them. They could switch you to light-duty work if it is available. However, light-duty work is not always available. Then, the employer may legally terminate you. There is nothing that obligates the employer to offer you a different job that can accommodate your limitations.
They may want to do this, but they do not have to do this.
The employer may also factor in your performance prior to the accident in making an employment decision. For example, if they claimed that you were a poor performer in your job, or you did things like consistently showing up late, they still retain the right to fire you. Filing a workers’ compensation claim does not insulate you from any of these allegations.
Being a contract employee
The employer may also fire you if you are a contract employee, instead of being an at-will one. If you have an employment contract, and you are absent from work for an extended period of time, the employer has the right to terminate you. Their claim would be that your injury is what is preventing you from fulfilling the terms of your contract.
Be on the Lookout for Any Adverse Employment Action
The fact remains that the employer does not have the right to discriminate or terminate because you have filed a workers’ compensation claim. You may have had performance evaluation marks, or you may not have been at fault for your injury. Nonetheless, your employer could have informed you that it is firing you.
From an employer’s standpoint, they do not like workers’ compensation claims. The more claims that are filed, the higher their premiums can go in the future. Then, you may have a legal right to file a claim against the employer itself, as opposed to just a workers’ compensation claim.
Filing a REDA Complaint in North Carolina
In North Carolina, the remedy that you have for a wrongful termination is filing a Retaliatory Employment Discrimination Act (REDA) complaint. This complaint is filed with the North Carolina Department of Labor. You have 180 days from the last discriminatory action to file your complaint.
REDA complaints can cover:
- Discharge
- Suspension
- Demotion and/or reduction in wages
- Retaliatory relocation
REDA complaints can cover many types of discrimination. Here, these complaints can also cover workers’ compensation retaliatory discrimination.
Remedies for Workers’ Compensation Discrimination in North Carolina
If your employer is found to have discriminated against you, there are a number of remedies that are available to you, including:
- An injunction to stop the continuing violation of REDA.
- Reinstatement to the same position that you held before the retaliatory action or discrimination, or to an equivalent position.
- Reinstatement of full fringe benefits and seniority rights.
- Compensation for lost wages, lost benefits, and other economic losses that were caused by the retaliatory action or discrimination.
There is legal help available to file a REDA complaint. You would need the help of a professional who can identify the discriminatory actions and present your side of the story.
You have the burden of proof to show discrimination. You would need to overcome the employer’s defenses because they will never admit that they outright discriminated against you. They would always claim another reason for what may seem obvious to you. An attorney can use direct or circumstantial evidence to prove your claim of discrimination or retaliation.
You may be entitled to additional compensation beyond just what you would have gotten in a workers’ compensation claim. However, REDA cases will never be cut-and-dry because employers are getting their own legal advice.
Contact a Wilmington Workers’ Compensation Attorney Today
If you have been injured on the job, and you are experiencing any difficulties with your workers’ compensation claim, you need legal representation immediately. The attorneys at Horton & Mendez deal with all the challenges that your claim can present, including situations in which you are facing retaliation and discrimination. We stand up for your legal rights when your employer or an insurance company is trying to violate them.
You can schedule a free consultation to speak with an attorney by calling us at 910-405-7751, or by sending us a message online.
