Workers’ Comp 101: When Can You Discipline an Injured Worker?

"Even if we’re talking about an injured worker is in a protected classification, the employer can generally discipline that person as long as they can show good cause." David Schmit told us in a recent BLR webinar. Good cause can be defined as "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power."

To test whether "good cause" applies, consider the business judgment of the employer, or the fairness to the employee of the decision to discipline or discharge, while still giving substantial weight to managerial discretion. Be sure to balance business efficiency and profitability against the employee maintaining his or her job.

One aspect in proving there was good cause can be to show that the behavior was clearly against company policy. For example, is the infraction described in your employee handbook? It is important to consult the employee handbook before taking action. If the offensive behavior is not yet described in the employee handbook, consider an addendum and/or notice to all employees that the offensive behavior will no longer be permitted.

Workers’ Comp 101: Consistent Application of Discipline Helps Negate Pretext Claims

Evenhanded enforcement of the rules is critical to ensure that one employee is not unfairly punished more than others. Doing so can make it seem as though the enforcement of the rule is only pretext for the real reason for discipline: retaliation for the workers’ compensation claim.

A claim of pretext can come across as a claim of selective enforcement. Even if the rule is in the handbook, the employee could argue that the rule was broken by everyone and enforced selectively against him. Alternatively, if the rule was not in the handbook, it could be argued that the rule was made specifically for him as a means of discriminating against him.

These scenarios highlight the importance of evenhanded enforcement. However, consequences can still be flexible yet fair. In other words, you can still have consistent enforcement with varying consequences that take into account the specific circumstances on an individualized basis. The key is documentation of the rationale behind the differences in consequences.

Workers’ Comp 101: The Importance of Documentation When Choosing to Discipline

Any time a decision is make to discipline an employee – whether they are a workers’ compensation claimant or not – be sure to have evidence to back up the need for discipline. If you don’t have any evidence other than the supervisor’s observations – even if the supervisor says that the misconduct has been consistent – do not proceed with terminating the employee.

The way to proceed is to start the documentation process. Start by advising the employee of the unacceptable behavior and giving them an opportunity to improve. They may improve their behavior. If they don’t, then you’ve got the start of documentation to be able to take further action later. Again, consistent enforcement of the rules is key. Document infractions of all employees and supervisors; not just those of the employee in question.

For more information on how an employer can discipline a workers’ compensation claimant without discrimination charges, 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.

Attorney David Schmit is the founder of Schmit Law in Oakland, California. Schmit represents employers’ interests in state and federal courts and administrative forums in workers’ compensation matters, including workers’ compensation, civil personal injury law, and wrongful termination cases.