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Proving retaliation in a workers compensation claim often is easier than demonstrating retaliation in other types of claims, a legal expert says.
An employee can allege retaliation for filing or attempting to file a workers comp claim even when there is no dispute about the underlying claim as long as they had or allegedly had a job accident, John Daly, an Orlando, Florida-based partner at law firm Rissman, Barrett, Hurt, Donahue & McLain P.A., told attendees of the Workers' Compensation Institute conference in Orlando, Florida, last week.
The retaliation complaint could spring from something less than discipline or termination, he said. For example, an employer's failure to comply with a physician-ordered work restriction, refusing a transfer request or changing the claimant's work schedule without notice also could be the basis of a retaliation claim, Mr. Daly said.
“Workers comp retaliation is much easier from the standpoint of the employee to be able to meet his burden of proof,” he said. “It's not an (Americans with Disabilities Act) case. The employee doesn't have to prove he's been discriminated against. It's really just a bad reaction … when the employer doesn't do the right thing or appears not to have done the right thing in response to a workers compensation claim.”
Another distinguishing factor of a workers comp retaliation claim compared with one that is disability-based is that employees rarely suffer work-related injuries intentionally, said Jason Taylor, a Tallahassee, Florida-based partner at law firm McConnaughhay, Duffy, Coonrod, Pope, Weaver, Stern & Thomas P.A. told the conference.
“What that does is allows a jury to see the workers compensation claimant as a person who really may have done nothing wrong, unlike someone who may have made a bad faith claim about discrimination or did something improper in the workplace,” he said.
That allows them to “make a fairly sympathetic case” as opposed to a whistleblower who purposely comes forward to “stir the pot” or aren't necessarily sympathetic figures, Mr. Daly said.
A U.S. appeals court has reinstated a retaliation lawsuit filed by a former employee assistance program consultant who was terminated for advocating on behalf of a sexual harassment victim.