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?
Most employers fully understand that the workers’ compensation laws make it unlawful for an employer to discharge, discriminate, or retaliate in any way against workers’ compensation claimants solely because they either sought workers’ compensation benefits or 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?
Adele Abrams, Esq., CMSP, offered the following tips in a recent BLR webinar (BLR is CER’s parent company). Abrams 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.
Your complete reference guide to workers’ comp in California—find out more!
How To Protect Yourself
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:
1. 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 age bias issues for any employee age 40 or above.)
2. 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.
3. 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 its reason is for terminating the employee in the unemployment hearing—and then can use that to show pretext if the employer gives a different version in a workers’ comp or another retaliation hearing. You have to be consistent from day one,” Abrams advises.
4. 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 warns.
5. Pay all wages and benefits due, including commissions and accrued unused vacation, to avoid FLSA and state wage law claims.
6. 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.
Your Complete Guide to Workers’ Comp in California
Dealing with workers’ comp questions can be stressful and time-consuming for HR. What can make it easier? Our exclusive HR Management & Compliance Report Workers’ Compensation in California: A Complete Guide for California Employers.
Workers’ comp is one of the few areas of employment law that’s almost entirely governed at the state level. And it’s complicated, to say the least:
- What qualifies as a covered injury or illness?
- Should you self-insure?
- Who’s entitled to workers’ comp benefits?
- What do you need to know about the State Compensation Insurance Fund (SCIF)?
- How are premiums calculated—and how can you keep yours as low as possible?
- What should be included in your Injury & Illness Prevention Program (IIPP)?
- Which workers’ comp notices must you distribute to employees—and when?
- How do you properly calculate benefits for injured employees?
- What should your return-to-work program look like?
- How does workers’ comp interact with other state and federal leave laws, including FMLA/CFRA and ADA/FEHA?
- What can you do to reduce the risk of workers’ comp disputes—and fraud?
- How should you respond to a workers’ comp-related lawsuit?
Fortunately, answers to all of these questions and more are covered in depth in our comprehensive, 138-page HR Management & Compliance Report Workers’ Compensation in California: A Complete Guide for California Employers.
This exclusive report includes everything you need to know for successful management of your company’s workers’ comp program and has been fully updated for 2013. Order your copy today—your satisfaction is 100 percent guaranteed.
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