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Injured employees more likely to win retaliation claims

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ORLANDO, Fla. — The contentious nature of the relationship between employers and their injured workers often is at the heart of the rising number of retaliation charges.

Nearly 43% of all U.S. Equal Employment Opportunity Commission charges brought in fiscal 2014 included a retaliation claim. While it is unclear what percentage of cases emanate from workers compensation claims, lawyers say retaliation claims are increasing in the workers comp sector because comp cases generally have a lower initial burden of proof and injured workers are seen as sympathetic plaintiffs.

The most nonretaliatory reason employers give for an adverse action against an injured worker is violating the company's attendance policy, said John Daly, an Orlando, Florida-based partner at law firm Rissman, Barrett, Hurt, Donahue & McLain P.A. But the injured worker can argue that this is just a ploy, which could be enough to survive a summary judgment motion, he said.

Employers may have a general policy to fire an employee after their Family and Medical Leave Act time expires or after a pre-established time period, particularly if the employee has not communicated about their return to work, but such policies will likely run afoul of laws that include the Americans with Disabilities Act cases, lawyers told attendees at the Workers' Compensation Institute conference in Orlando, Florida, last month.

“A general policy of "You're gone after 12 weeks' is going to get you in a lot of trouble,” said Jason Taylor, a Tallahassee, Florida-based partner at McConnaughhay, Duffy, Coonrod, Pope, Weaver, Stern & Thomas P.A.

Employers should contact employees to advise them how much leave they have left, and that they need to return to work once their leave expires or explain why they still cannot, the lawyers said. However, employers also should properly consider and accommodate specific requests for additional time off and be ready to demonstrate that an injured worker's absence causes an undue hardship.

Seemingly innocuous actions or comments by an employer could be grounds for a retaliation charge from injured workers, particularly if they suggest an adverse action may be forthcoming, attorneys said.

Without detailing specifics that would violate confidentiality, Mr. Taylor described a recent retaliation claim that resulted in a verdict of more than $100,000 for the injured worker. The worker, who initially refused to return to work despite being assigned a light-duty desk job, succeeded in part because emails led the jury to conclude that the company was seeking to fire a problematic employee, he said.

In one email, a human resources staffer directed a fellow employee to track the days an injured worker did not call in or show up to possibly be used in a disciplinary case. While employers should document such absences and communications, mentioning potential discipline helped create the impression that the employer wanted to terminate the employee, Mr. Taylor said.

“We've all probably written emails that are worse than this,” Mr. Daly said.