Benefits and Compensation

Workers’ Compensation: Avoid Adverse Action Claims

“Most state workers’ compensation laws provide that it is unlawful for an employer to discharge or otherwise discriminate/retaliate against a worker for claiming worker’s comp or testifying at a workers’ comp hearing.” Adele Abrams explained in a recent BLR webinar. And this goes beyond just standard discipline or firing: “Anything that is an adverse action can be viewed as discrimination and retaliation under workers’ comp statutes.” Abrams cautioned.

What counts as an adverse action? Here are some examples:

  • Refusing to hire someone with a history of workers’ compensation claims
  • Demoting the employee
  • Giving the employee a “last chance agreement”
  • Putting the employee on a Performance Improvement Program (PIP)
  • Suspending the employee without good cause
  • Giving the employee negative performance reviews
  • Transferring the employee to a less desirable job or location
  • Reducing the employee’s hours (including not allowing opportunities for overtime)
  • Reducing the employee’s pay
  • Giving a bad reference for a former employee who was a workers’ compensation claimant (or even telling the prospective employer that they were a workers’ compensation claimant)
  • Eliminating professional development opportunities for the employee, such as training
  • Taking away perks or other benefits from the employee, such as a company car or company cell phone
  • Performing other hostile acts such as: ostracizing the employee, unnecessarily reprimanding the employee, or subjecting the employee to general animus

Part of the risk for employers is that direct managers or supervisors may engage in these behaviors without HR knowledge. These situations can quickly lead to the employee feeling they have been discriminated against, even in the absence of a more obvious retaliatory or discriminatory action like discipline or termination.

“This is where you really have to school your supervisors,” Abrams warned. Be sure your team understands the laws.

For more information on what discipline can and cannot be done when a workers’ compensation claimant, 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://store.blr.com/events/webinars.

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.