Employer Retaliation against the Workers’ Compensation Claimant

In some ways, workers’ compensation can be seen as a compromise. Employers accept responsibility for employees’ injuries under workers’ compensation even if they are not at fault, but they don’t have to worry about being tied up in court with lawsuits that might cost them a lot of money. At the same time, employees give up their right to sue their employer in court in exchange for guaranteed benefits paid in a timely manner. These benefits are often lower than what might be obtained through a lawsuit. However, as with all lawsuits, no outcome is guaranteed, and the injured employee takes the risk of ending up with nothing.

Unfortunately, even in this spirit of compromise, sometimes an employer may retaliate against an employee for filing or even talking about filing a workers’ compensation claim. In most states, employees have legal rights and remedies in response to such adverse employer actions.

Examples of Employer Retaliation

Most commonly, people think of employer retaliation in the form of “retaliatory discharge,” when an employer unjustly fires an employee for pursuing his or her workers’ compensation rights. But employer retaliation can also come in other forms of discrimination or harassment in the following ways:

  • Undeservedly poor performance review
  • Failure to promote
  • Demotion
  • Adverse wage action
  • Threats of adverse action
  • Isolation or intimidation in the workplace
  • Negative reassignment, reclassification or transfer
  • Interference with the workers’ compensation claims process
  • Refusal to rehire
  • Negative action vis-à-vis employment benefits or terms of employment, such as insurance, vacation or scheduling
  • Unreasonable increase or decrease in job duties
  • Unwarranted disciplinary action
  • Undeservedly negative employment references
  • Retaliation against a co-employee testifying in support of a claimant or cooperating in the investigation

Legal Remedies for Employer Retaliation

Most states have some legal remedy for employees whose employers have retaliated against them for taking workers’ compensation action, and many states’ courts allow retaliatory discharge lawsuits. These remedies may be available through state agencies and/or in court actions. Some states allow both statutory and court-created or common-law remedies; other states may only provide for one or the other. The remedies available vary from state to state, so it is a good idea to consult a lawyer in your state to learn about your particular options.

Even if your state has not recognized these remedies for employer retaliation in the workers’ compensation setting, there may be other ways to find legal help.

Justifiable Employer Action

Employers may still legitimately terminate or discipline any employee, regardless of workers’ compensation status, as long as the negative action is not a pretext for workers’ compensation retaliation and the action does not violate any other employment laws.

Are You Experiencing Employer Retaliation in South Carolina?

Stand up for yourself if you have been the victim of employer retaliation in response to your workers’ compensation rights. Johnnie Fulton and Andrew C. Barr of Fulton & Barr in Greenville, SC, are experienced workers’ compensation attorneys serving Upstate South Carolina and they are ready to help you. Call 800-868-2110 or contact us online to set up your free consultation.