December 21, 2022
Retaliation claims: what they are and best practices to avoid them
Most states have laws prohibiting retaliation against an employee for filing a work comp claim. If an employee feels they’ve been wrongfully targeted for exercising their protected right, they may in turn file a retaliation claim.
Some examples of workplace retaliation include:
- Failing to provide a First Report of Injury Form at the time of injury or telling the employee they can’t seek medical attention for their injury
- Terminating, laying off, demoting or transferring the employee to a less desirable position
- Denying the employee overtime, or denying them a promotion or pay increase
- Reducing the employee’s pay, hours or benefits
- Giving the employee unjustifiably low performance evaluations
- Unexpectedly changing the employee’s schedule or work location
- Intimidating the employee or creating a difficult or unpleasant working environment for them
The cost of termination
It’s important to know that termination of employment does not terminate the work comp claim. Some employers may try to reduce or limit the payable lost-time benefits on a work comp claim by terminating the employee for a reason unrelated to the work injury, however, this idea may ultimately make the claim more costly.
Depending on the circumstances surrounding the termination, temporary total disability and temporary partial disability benefits may still be available to an employee up to the statutory caps on the benefits. Therefore, terminating the employee may cost the employer more in wage-loss benefits compared to actively working with the injured employee to return to work.
Two other examples of benefits an employer could continue to pay after terminating employment are vocational rehabilitation treatments post-injury, and assistance in their search for a new job.
If the employer is found to have terminated the employee in relation to their work comp claim, they may be responsible for paying the employee civil damages, including punitive damages. For example, Minnesota’s work comp state statute 176.82 subd. 2 states that “an employer who, without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee’s physical limitations shall be liable in a civil action for one year’s wages.”
Insurability of a retaliation claim
Retaliation claims are civil claims made in state district court, and as such are not typically covered under work comp policies. This means you would need to hire your own attorney to defend against the claim.
Tips to avoid a retaliation claim
A work comp claim requires equal cooperation from both the injured employee and the employer, but an employer can take several steps to reduce their likelihood of a retaliation claim. Here are some tips to avoid litigation:
- Communicate with the injured employee frequently and make sure they know the company cares about their recovery. Maintain a good relationship even if there is a dispute.
- Include non-retaliation provisions in your company policies and educate employees.
- Document any reports of harassment or retaliation of the injured employee and investigate them. Communicate your concern to the injured employee and keep them updated on any investigation.
- Accommodate doctor-prescribed work restrictions.
- Have a return-to-work plan and make sure to offer light duty job options, when appropriate.
- Document any performance concerns as they arise, and address them with the employee in an appropriate manner consistent with company employment practices and policies.
- Consider the possible ramifications before disciplining or terminating an employee.
This is not an exhaustive list. For tips on how to avoid litigation in general, view our Avoiding Litigated Claims webinar on sfmic.com/webinars.
This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.