What Constitutes Illegal Retaliation
Employers cannot take adverse action against you for exercising your right to workers' compensation. Illegal retaliation includes:
- Termination: Firing you for filing a claim
- Demotion: Reducing your position or responsibilities
- Wage Reduction: Cutting your pay or benefits
- Schedule Changes: Unfavorable hour or shift assignments
- Harassment: Creating a hostile work environment
- Negative Reviews: Giving poor evaluations based on your claim
- Refusal to Rehire: Not bringing you back after recovery
Proving Retaliation
To prove retaliation, you generally must show:
- You engaged in protected activity (filing a workers' comp claim)
- Your employer took adverse action against you
- There's a causal connection between the two
Evidence supporting retaliation claims includes:
- Timing - adverse action soon after filing your claim
- Prior positive performance reviews
- Written or verbal statements about your claim
- Different treatment than non-injured employees
- Inconsistent or shifting explanations for the adverse action
- Documentation of hostile comments or behavior
Your Legal Options
If you've experienced retaliation, you may have several legal remedies:
State Anti-Retaliation Laws: Most states have laws specifically prohibiting workers' comp retaliation, allowing you to sue for damages.
Wrongful Termination: A lawsuit for being fired in violation of public policy.
Discrimination Claims: If your injury constitutes a disability, you may have claims under the ADA or state disability laws.
OSHA Complaints: You can file an OSHA complaint for retaliation related to reporting safety violations.
Damages in Retaliation Cases
Successful retaliation claims can recover:
- Back Pay: Lost wages from the date of retaliation
- Front Pay: Future lost wages if reinstatement isn't practical
- Reinstatement: Return to your former position
- Benefits: Lost health insurance and retirement contributions
- Emotional Distress: Compensation for anxiety, depression, and humiliation
- Punitive Damages: Additional damages to punish particularly egregious conduct
- Attorney Fees: Many statutes allow recovery of legal costs
Steps to Protect Yourself
Take these steps to protect against retaliation and preserve your rights:
- Document everything - keep records of all communications
- Follow all company policies and procedures
- Maintain good attendance and job performance to the extent possible
- Report any harassment to HR in writing
- Keep copies of performance reviews and commendations
- Consult an attorney if you notice warning signs
- Don't sign any documents without legal review
- Don't resign - let them fire you if they're going to