Guest Blog by Jon Rehm
The Texas Supreme Court ruled that that sovereign immunity protects public employers against suits for retaliating against employees who file workers compensation cases. This is an unfortunate decision, but not a surprising decision based on the hostility directed towards public employees in today’s political climate. Legally the Texas case was supported by a broad view of sovereign immunity that covered operational aspects of government in addition to its policy making role. Advocates for injured workers should be aware that employers and insurers will attempt to have other states adopt Texas’ approach to workers compensation retaliation suits against public employers.
Though Texas has restricted the ability of public employees to bring workers comp retaliation suits, the majority of states have a cause for action for retaliation for filing for workers’ compensation claims by statute or case law. This cause of action prevents employers from taking the following stand with their injured workers:
“Although you have no right to a tort action, you have a right to a workmen's compensation claim which, while it may mean less money, is a sure thing. However, if you exercise that right, we will fire you.”Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 366 N.E.2d 1145, 9 Ill.Dec. 634 (1977).
So how does one know that an employer is retaliating against an injured worker for filing a workers compensation claim? One you have to file for a workers compensation claim. This is usually a given in these cases. However in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court recently held that an oral notice of a wage and hour claim to the employer qualified as a filing a claim for the purpose of an FLSA retaliation claim.
Then the employer has to retaliate against the employee. Again this is a given if the employee has been fired, but can mean any adverse employment action taken against the employee. However while “less flagrant reprisals by employers may indeed be adverse ... not every unpleasant matter short of discharge or demotion creates a cause of action for retaliatory discharge.” Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.1999) Attorneys need to check the law in their jurisdiction to see how far courts in their particular jurisdiction have stretched retaliation.
The heart of a workers compensation retaliation case is linking the retaliation to the filing of the workers compensation claim. This is usually done by circumstantial evidence because employers rarely announce retaliation as a motive. Among the factors showing retaliation:
(1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996).
In addition proximity in time between filing and retaliation and satisfactory job performance are circumstantial evidence of motivation. Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (Neb. 2006)
Notice of the workers compensation injury by the employer is usually the easiest element to prove. Though you probably won’t get an employees boss to admit he or she made negative comments about employees injured condition, your client’s testimony that there were negative comments about their injured condition are sufficient for the purposes of defending a summary judgment motion.
Proving a company failed to adhere to their own policies usually means that counsel for the employee needs to obtain and familiarize him or herself with the defendant’s employee handbook if one exists. Failure to follow their own procedure can also be evidence that an employer’s reason for firing your client was false.
Proving discriminatory treatment in comparison to other employers requires fact-specific discovery. In the Riesen case, the employee was fired because he falsified his employment application by not listing all of his previous employers. His employment application only listed room for three employers but asked employees to attach another sheet for more employers. Plaintiff only listed three employers on his application, but listed more on his answers to interrogatories which HR manager for the defendant had read. Plaintiff surmounted this hurdle by showing that almost all the employees at the plant did not attach additional sheets for other employers. Plaintiff also showed that plaintiff was only employee terminated for not listing all of his employers in his employment application.
Proximity in time between filing and retaliation is another element of cause. Just because an employee was fired many months after they initially filed for comp doesn’t defeat proximity. You can still tie retaliation to proximity if you can tie the retaliation to action like hiring a lawyer or having an expensive surgery.
Satisfactory job performance can also prove retaliation. If a client had good performance reviews and an absence of discipline prior to the work injury, but starts receiving write-ups and poor reviews after the work injury then you have evidence of retaliation.
In addition to proving a link between the retaliation and the workers comp claim, plaintiffs usually need to prove the defendant’s stated reason for discharge was false. If the plaintiff offers evidence of the elements listed above then they can usually make the case that the reason for retaliation was pre-textual.
Hopefully this article has given some guidance for how workers compensation practitioners can prosecute retaliatory discharge cases. With aggressive lawyering and creative thinking, workers compensation practitioners can get good results for their clients and discourage employers from interfering with injured workers rights to receive workers compensation benefits in their jurisdictions.
Jon Rehm practices in Lincoln, Nebraska (Rehm, Bennett & Moore, PC, LLO). He concentrates his practice on representing injured workers and their families. He hold a degree in journalism from Northwestern University(B.S.) and a law degree from Nebraska College of Law(J.D.). Jon is a member of the Nebraska State Bar Association, the Nebraska Association of Trial Attorneys and the Workplace Injury Law Advocacy Group.
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