AWC Blog

Retaliatory Discharge: What You Need To Know

you're fired prompt

You’ve had a problem employee for weeks, maybe even months. They’ve created discord with other employees, upset customers, and found plenty of excuses for why they can’t do the job you hired them to do. Now, they’ve been involved in an accident on the job and filed a workers’ comp claim.

You’ve had it with them and their trouble-making. They have got to go.

We know you’d never fire someone simply because they filed a workers’ comp claim. But even if the reasons were legitimate, can you prove that their firing didn’t have anything to do with their workers’ comp claim?

What is Retaliatory Discharge?

Essentially, retaliatory discharge is a form of wrongful termination that occurs when an employee is fired after doing something within their legal rights that an employer doesn’t want them to do – whistleblowing, refusing to discriminate, or filing a workers’ comp claim after an accident. The reason for their firing can’t be linked to those actions, or you’ll be the one to pay the cost.

If you and your company are found guilty of retaliatory discharge of an employee, you’ll pay a lot in court costs, attorney’s fees, and any damages owed to the employee. More than lost wages, you’ll probably be responsible for damages for mental anguish and other suffering, as well.

How to Avoid Retaliatory Discharge

Before you fire someone who has filed a workers’ comp claim, make sure you’ve done all of your homework first. They may still sue you, but you’ll have the proof to show your actions were justified.

  • Keep documentation on all wrong doing the employee has done to justify being fired.
  • Keep documentation of conversations you’ve had with the employee about their behavior.
  • Show where you’ve counseled your employee on the ramifications of future bad behavior.
  • Never make a connection – verbally or in writing – with the firing of an employee and their workers’ comp claims.
  • Keep all documentation on file well after the employee is fired.

Even if your employee’s own bad behavior is what lead to the accident, you’ll need to tread carefully. Make sure you’ve got a record to support the termination and that you’ve followed your company’s human resource policies to the letter. You don’t have to keep a bad employee because they might sue you later, but you do have to do your due diligence to make sure it’s clear exactly why someone was fired. If you don’t have what you need, their termination will need to wait until you do. Start documenting bad behavior as soon as you find out about it so that you’ll have the paper trail to justify firing them.

If you’ve ever in doubt, talk to a human resources attorney before terminating an employee. If you’ve got questions about your current workers’ comp policy and what happens when an injured employee no longer works for you, contact us today. We’re here to help!

Image courtesy of Flickr user Sean MacEntee.

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