Some employers in the past were able to take advantage of the workers’ compensation system, as well as employees’ rights, by using the threat of loss of employment to discourage workers from making compensation claims. Employees didn’t understand the system and frequently held back from making claims for injuries out of fear that they might have no job once they came back from a compensation-related leave.
Today, it is commonplace for an employee to sue an employer for improper discharge on grounds that either are fabricated or not fact-based. One of those grounds is that the employer violated the labor law when he fired the former employee because the employee had or was about to make a claim for workers’ compensation.
The law states that a person cannot be fired because they planned to or have availed themselves of their workers’ compensation rights. However, an employer doesn’t have to keep employing a workers’ compensation claimant indefinitely merely because the compensation claim has been made. In the motel business, for example, turnover can occur frequently due to low wages, or dissatisfaction with the work habits of those being employed. Some employees may seek to use motel workers compensation insurance as a way of getting back at their employers when they think they are being taken unfair advantage of.
Steps to take when discharging an employee who has made a workers’ compensation claim
1.Recognize that there is a fairly good likelihood that a firing under such circumstances may lead to a lawsuit.
2.Decide whether to discharge the employee now or tolerate him or her long enough to establish a delay period between the end of the compensation leave and the loss of employment. This may make the possibility of a suit less likely.
3.Evaluate other potential claims that employee also might bring in the event of such a lawsuit, including age discrimination.
4.Be prepared for the inevitable question if the matter is tried: Why did so much time pass before considering firing this person in the first place? Be prepared by assembling whatever proof may be needed to refute the plaintiff’s claim.
Steps to take when dealing with an employee whose work really isn’t good and may see making a workers’ comp claim as a way out:
1.Warn the employee about poor work and document the warnings. Don’t let them hear about a problem for the first time when they are let go.
2.Before firing a worker, let them know in advance that discharge is a possibility. If they get warnings but never are made aware of the risk of job loss, an eventual comp claim may appear to be the only reason for their being let go.
3.Don’t permit wimpy supervision of employees. Whenever considering letting someone go for bad work, don’t claim that it is because business is slow, or that they are performing okay, but that the company is overstaffed. When unhappy with a worker’s performance it is best to tell them so, and outline it in a documented performance review.
Keep in mind that good worker evaluations and documentation are equally important in avoiding claims of firings associated with age, race, sexual harassment, family leave and disabilities-act cases as well.