Any Workers Compensation attorneys will tell you that trying to fire someone who is receiving workers compensation is extremely difficult and in general it is not a good idea. Many states would go with the notion that the firing is in retaliation for the employee looking to claim workers compensation. However, having said that it isn’t impossible, but it must be done for the right reasons and it must be done carefully.
An example of this is a telecommunications Tech from Texas who worked for the telecoms giant AT&T. In essence the worker stated that he badly sprained his ankle whilst stepping down from a ladder. By the time he came to filing a workers compensation claim the worker was a little confused and vague about the date of the accident and as a result put several dates down on the claim form. Needless to say, his vagueness caused the insurance company to deny the claim.
About one month later the worker then violated a company procedure and as a result, was then suspended and subsequently had his employment terminated. Even though the person in question had his compensation claim turned down, he tried to sue AT&T on the grounds of retaliation for filing the claim in the first place. An experienced Los Angeles workers compensation attorney explains that when an employer is faced with this situation, the onus or ‘burden of proof’ is on them to prove that the worker was not fired because of their claim and instead their employment has been terminated because of violations of company policies or for any other reason.
It turned out that the employer had a poor record of performance and faced many disciplinary hearings before the day that he was suspended. This went on for more than one year prior to the (alleged) injury and all action had been scrupulously documented. In this instance the court waived in favor of AT&T because they had gone through the right disciplinary channels.
What if an employer is looking to terminate the employment of an individual who has just been hurt, who in turn has no disciplinary problems? A team of Los Angeles workers compensation lawyers explain…
There are often many cases of employers who are looking to terminate an employee under the ‘at will’ policy who has had no previous disciplinary issues. The problem is that once they get hurt and start to claim workers compensation, then the employer has absolutely no grounds for firing the employee, as they have now become part of a protected group. The employer is to all intent and purpose, ‘caught between a rock and a hard place’. As a result if they attempt to fire the employee, courts will not look on it favorably and are more than likely to side in favor of the employer. The only way to terminate an employee who is surplus to requirements is to do it before they get hurt.
Even if a worker has experienced a poor track record and has been disciplined prior to the injury, it might not be possible to fire the person if full and proper disciplinary procedures haven’t been adhered to. In order to stop the wrath of a visit from a workers compensation attorney, it is vital that company procedures for discipline are not only well documented, but are adhered to. The other issue that might become a determining factor regarding termination is time. For instance, if a worker has been on long term sick and returns to work and gets fired one or two weeks later then it is easy to see how this could be classed as discrimination. However if the person was fired six months down the line from their return to work, it is harder to establish a direct link between their workers compensation and the termination.
As you can see, it does seem a fine line to tread, but if it is carried out correctly and for the right reasons, then it is indeed possible. If you are in any doubt a skilled team of workers compensation attorneys Los Angeles can explain your rights.