Frequently Asked Questions About Workers’ Compensation Retaliation
Nobody should fear for their job when submitting an injury claim, but sadly throughout Ohio and across the country that’s exactly what happens. Here are some of the most commonly asked questions we field around workers’ compensation retaliation:
How Do I Prove A Workers’ Compensation Claim? What Evidence Do I Need To Show That I Was Wrongly Fired Today After I Was Hurt On The Job And Filed For Worker’s Comp?
Workers’ Compensation Retaliation Attorney: You should never try to do this alone as your company has a team of lawyers that will be working against you. To prove a Workers’ Compensation retaliation claim in Ohio, the courts use what is called a burden-shifting analysis. First, as the employee, you – with the help of your top Workers’ compensation retaliation attorney – would have to show facts supporting three elements of the Workers’ Compensation retaliation claim: (1) you were injured on the job; (2) you instituted or pursued a claim for Workers’ Compensation benefits or testified in a Workers’ Compensation hearing or other proceedings; and (3) you suffered an adverse employment action. If you can present evidence on each of these elements, the employer company must state a legitimate, nondiscriminatory reason for the adverse employment action that was taken against you. Stated more simply, your boss has to explain why you were fired other than for filing a Work Comp claim. This is obviously a very easy burden for your boss/company to meet. At that point, you have the opportunity to prove that the reason given by your employer/manager is a lie, or what employment law attorneys call pretext.
What Should I Do If My Company Or Boss Tells Me To Lie About Where I Was Injured? Can I Be Fired If I Refuse To Make Up A Story About How I Got Hurt So That It Is Covered By Private Medical Insurance Instead Of Workers’ Comp?
Workers’ Compensation Retaliation Attorney: Sometimes, Workers’ Compensation retaliation claims occur when the company or boss tells an injured worker to not file a Workers’ Compensation claim or to tell the emergency room that the accident was not at work. In exchange, the employer or manager promises that the company will pay for all medical bills or medical insurance deductibles as well as wage continuation. Unfortunately, as the bills mount, many employers will break their promise and fire the employee, claiming that there was never a Workers’ Compensation claim to base a retaliation lawsuit on. Amazingly, because their promises were likely never put into writing, these employers will point to the fact that you affirmatively told the hospital that the injury was not work-related and claim that you are the one lying now just to create a wrongful termination lawsuit.
If you are confronted with this common request by employers to lie about your injury, our Workers’ Compensation retaliation lawyers recommend always telling the truth to the emergency room or other medical provider (lying could put you in jeopardy for insurance fraud). However, if you are feeling absolutely compelled to follow your boss’s or manager’s mandate to lie, you should confirm the arrangement in writing by sending an email or text message that says something like: “I want to make sure that you told me that I should not file a WC claim for my work injury and that the company will pay all my medical bills and time off, and then I will have same WC protection. Please confirm so I know what to say at ER.” If your boss or manager confirms that arrangement in writing, at least you may have a claim for breach of contract. If your employer refuses to confirm that agreement in writing, you best tell the truth when you get medical treatment for your work-related injuries.
I Know That I Cannot Be Fired For Filing A Work Comp Claim, But What Else Does Retaliation Mean? Am I Being Retaliated Against For Filing A Workers’ Compensation Claim?
Workers’ Compensation Retaliation Attorney: Retaliation simply means taking any adverse action against an employee who has filed a Workers’ Compensation claim including, but not limited to, termination, demotion, pay cut, and unfavorable shift change. Retaliation for filing a Workers’ Compensation claim can be any action that would discourage you or any other employee from filing a Workers’ Compensation claim in the future. The Workers’ Compensation retaliation attorneys at The Spitz Law Firm have litigated claims on all these types of retaliation.
Can I Be Fired While On Leave For A Workers’ Compensation Injury? How Much Time Do I Get Off For A Work-Related Injury?
Workers’ Compensation Retaliation Attorney: This answer is a little tricky and it would be best to consult a top employment law lawyer to address the specifics of your situation. A lot will depend on whether you are eligible for Family and Medical Leave Act (“FMLA”); are left with an actual or perceived disability, or have available sick time or paid time off available to you. It will also be best for an employment law attorney to consider any company policies in an employee handbook and how the employer has treated other employees that have been hurt or sick and not filed a Workers’ Compensation claim. However, on a broad note, your boss, manager or company cannot fire you strictly because you filed a Workers’ Compensation claim, but you can be fired you while you have an open Workers’ Compensation claim. However, if you are fired while you have an open Workers’ Compensation claim, your company is required to prove reasons for your termination other than that you filed a Workers’ Compensation claim. Obviously, if you are fired one week into your Workers’ Compensation leave for things that happened while you were not there; or if you are fired for conduct that occurred months before the Workers’ Compensation claim without your boss disciplining you at all, it will be difficult for your employer to show that the Workers’ Compensation claim was not the real reason that you were fired.
Can My Company Fire Me After I’m Injured But Before I Have A Chance To File My Workers’ Compensation Claim? Can My Boss Block A Wrongful Termination Claim By Firing Me On The Spot When I Am Injured At Work?
Workers’ Compensation Retaliation Attorney: No. In Sutton v. Tomco Machining, Inc., the Ohio Supreme Court considered whether Ohio R.C § 4123.90 also precludes an injured employee who suffers retaliation before filing a Workers’ Compensation claim from filing a common law wrongful discharge claim. The employer’s lawyers argued that the Workers’ Compensation Act only protected employees that had actually filed a Workers’ Compensation claim for retaliation. The Ohio Supreme Court held that while the employee did not have an express remedy available by statute, he had an identical remedy available under a common law wrongful discharge claim: “We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits…. The General Assembly certainly did not intend to create the footrace …, which would effectively authorize retaliatory employment action and render any purported protection under the anti-retaliation provision wholly illusory. Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers’ compensation claims.”
How Long Do I Have To File A Workers’ Compensation Retaliation Claim? Do I Still Have Time To Sue For Wrongful Termination If I Was Fired Last Month For Filing A Work Comp Claim?
Workers’ Compensation Retaliation Attorney: Ohio law extremely limits the time Workers’ Compensation retaliation victims have to act. Under Ohio law, employees must provide written notification of their intentions to pursue a claim under § 4123.90 to the employer within 90 days of the first adverse action, such as being fired or demoted. The notification has to be actually received by the employer and not simply mailed or sent. This means a letter mailed on the ninetieth day would not likely be timely. Once that is done, a lawsuit under the Workers’ Compensation Act must be filed in court within 180 days of the adverse action. Because of these very tight deadlines, it is important to talk with a Workers’ Compensation retaliation attorney as soon as there is any sign that your boss or manager might fire or take any other adverse action against you for filing a Workers’ Compensation claim.
How Do I Put My Job On Notice Of A Workers’ Compensation Retaliation Claim? What Is The Best Way To Notify My Employer About My Workers’ Compensation Retaliation And Wrongful Termination Claim?
Workers’ Compensation Retaliation Attorney: Unlike other types of employment claims, under Ohio Workers’ Compensation laws, employees must give written notice to their employers about their intent to bring a Workers’ Compensation retaliation claim. Any type of writing will suffice, including letter, handwritten note, email, fax or even text message. If you are still within 90 days of the adverse action, our attorneys can prepare the written notice to the employer of your intent to pursue a Workers’ Compensation retaliation claim. If you are passed 90 days since the adverse action, there needs to be some evidence that you notified your employer in writing. While preferable that you have a copy of the written notice, or even better some confirmation of receipt of the written notice, all is not lost if you do not. Your testimony and/or the testimony of others that you provided the written notice can be sufficient evidence – even if the employer has since destroyed the notice and/or now denies receiving it.
It is also important that you not wait to contact a Workers’ Compensation retaliation claim attorney until just before the above deadlines so that the lawyers have sufficient time to prepare the proper documents and/or pleadings, and make sure that it is received timely by your employer or filed with the court.
How Much Will It Cost Me To Pursue A Worker’s Compensation Retaliation Claim? Can I Afford To Sue My Employer For Wrongfully Firing Me After I Filed For Worker’s Comp?
Workers’ Compensation Retaliation Attorney: Because we know that many clients are not able to afford the costs of litigation upfront, we take on more Workers’ Compensation retaliation cases on a contingency fee basis than most firms. Contingency fee agreements mean that you do not have to pay any fee for legal services unless and until our employment attorneys recover money and/or results on your Workers’ Compensation retaliation claim. And, under the Ohio Workers’ Compensation Statute, employers that win at trial for Workers’ Compensation retaliation can get their attorneys’ fees paid by the violating employer.
I Was Fired Because Filed A Workers’ Compensation Claim; Can I Sue? Do I Have A Claim For Workers’ Compensation Retaliation Or Wrongful Termination?
Workers’ Compensation Retaliation Attorney: Our lawyers have filled this employment law website with as much law and legal help as we possibly could. However, an interactive evaluation of your individual rights and claims for Workers’ Compensation retaliation and wrongful termination cannot be performed online without direct conversations with one of our lawyers, who will need to talk to you about your particular situation and what happen on your job. At The Spitz Law Firm, LLC, our employment lawyers provide a free initial consultation for potential claims in Ohio. Do not speculate about your possible employment rights and claims when you can bet an answer by calling or filling out the submission form or setting up a call with an employment attorney today.
DISCLAIMER: These answers do not constitute legal advice or guidance.