How can employers protect themselves and reduce the likelihood of retaliation claims when disciplining or terminating an employee who has previously filed a workers’ compensation claim? If a claim of retaliation is feared, what evidence will help prove the employer acted legally?
Avoiding Retaliation Claims: Tips When Terminating a Prior Workers’ Compensation Claimant
Most employers fully understand that most state workers’ compensation laws make it unlawful for an employer to discharge, discriminate, or retaliate in any way against a workers’ compensation claimant solely because they either sought workers’ compensation benefits or because they testified at a workers’ compensation hearing. But that raises the question: what can an employer do to reduce the likelihood of a retaliation claim when the termination is completely unrelated to the workers’ compensation filing?
There are several steps employers can take during the termination process to protect themselves and minimize the likelihood of a retaliation claim by a workers’ compensation claimant:
- Conduct a pre-termination or exit interview of the employee with a signed statement that acknowledges the reason for the termination. (However, remember that the employee cannot be forced to sign it. Additionally, be careful about potential issues with the Age Discrimination in Employment Act for any employee aged 40 or above.)
- Investigate any new information discovered during the termination process. If new factual allegations are raised by the employee during the termination process, or if new evidence is brought to light that counters the termination rationale, instead of proceeding with the termination the employer should consider investigating and putting the employee on administrative leave pending the outcome of the investigation.
- Allow employees to have all benefits due to them. No attempt should be made to coerce the employee to waive company benefits or to otherwise dissuade or disqualify the employee from company benefits or unemployment insurance except in extreme circumstances. If the employee’s qualification for unemployment benefits is disputed, be careful to be consistent in explaining the rationale for the termination during this dispute resolution process.
“Remember, a lot of times employees will bring lawyers with them to an unemployment hearing . . . [lawyers] look at what an employer says their reason is for terminating the employee in the unemployment hearing—and then can use that to show pretext if an employer gives a different version in a workers’ comp or another retaliation hearing. You have to be consistent from day one.” Adele Abrams advised in a recent BLR webinar. - Confirm and explain the continuation of health benefits and COBRA rights in writing. “Nothing will prompt phone calls to the Department of Labor quicker than not offering somebody the rights to which they’re entitled under COBRA.” Abrams warned.
- Pay all wages and benefits due, including commissions and accrued unused vacation, to avoid FLSA and state wage law claims.
- Confirm the company policy regarding references to avoid appearing discriminatory. Using a neutral letter or having an identified reference contact can help in avoiding misstatements by supervisors to a prospective employer.
These tips can help employers to minimize the risk of retaliation claims. For more information on avoiding claims of retaliation from workers’ compensation claimants, order the webinar recording of “Workers’ Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks.” To register for a future webinar, visit http://catalog.blr.com/audio.
Adele Abrams, Esq., CMSP, is recognized as a national expert on occupational safety and health. She heads a nine-attorney firm, the Law Office of Adele L. Abrams PC, that represents employers and contractors nationwide in OSHA and MSHA litigation, and provides safety and health training, auditing, and consultation services.