Fired after workers’ comp claim – What recourse do I have?

Posted on December 23, 2021

Workers who have been fired after making a workers’ compensation claim can file a wrongful termination lawsuit for retaliation. This includes workers who are “at will” employees, as retaliating against a worker for invoking their workers’ compensation rights violates public policy. Successful lawsuits can recover back wages and even lead to reinstatement. Some states impose additional penalties on employers.

Is there recourse for being fired for filing a workers’ compensation claim?

Yes. Firing an injured worker because he or she filed a workers’ compensation claim is an act of retaliation. Under both state and federal law, retaliation is unlawful. Aggrieved workers can file a lawsuit against their employer for violating the law by firing them.

Every state has its own workers’ compensation system. Employers pay insurance companies for coverage. When employees get hurt on the job, the worker files a workers’ comp claim. If they are awarded compensation, the insurance company will pay it out.

This whole system gets undermined if employers could simply fire someone if they make a workers’ compensation claim. Workers would never file a claim. Employers would benefit from lower prices for workers’ compensation insurance.

To prevent this from happening, every state forbids employers from terminating workers in retaliation for filing a claim. If an employer does fire a worker for making a workers’ comp claim, the employee can file a lawsuit for wrongful termination. Getting the legal advice of a workers’ compensation lawyer from a reputable law firm is the best way to pursue a workers’ compensation case.

What if I am an at-will employee?

Even at-will employees can file a wrongful termination claim if they have been fired for requesting workers’ compensation for a job injury. There are exceptions to at-will employment. One of those exceptions is for wrongful terminations that run against public policy.

At-will employees are workers who can be terminated or can quit at any time, for any reason. Most states presume that the employment state is at-will, unless the parties have agreed otherwise.¹

There is a very important exception to the employer’s ability to terminate a worker at any time, though. The termination has to be lawful. There has to be a legal reason for the discharge or layoff. In most states, a termination of an at-will employee is unlawful if it:

• violates an implied contract for continued employment,
• violates an implied covenant of good faith and fair dealing,
• is contrary to public policy, or
• stemmed from the employer’s fraud or misrepresentation.

Terminations are generally contrary to public policy if they would undermine an important social interest or the enforcement of the law. The details may be different depending on the state, but examples often include firing someone for:

• refusing to break a law,
• performing a legal obligation, like jury duty,
• reporting a violation of the law, like informing law enforcement of fraud, or
• exercising a legal right or privilege, like the right to take medical leave under the Family Medical Leave Act (FMLA) or request an accommodation under the Americans with Disabilities Act (ADA).

Generally, employees have a legal right to file a workers’ compensation claim. Firing them for doing so is contrary to public policy.

What damages are recoverable?

Different states provide different compensation for workers who have been unlawfully discharged for filing a workers’ comp claim. Generally, though, workers can recover:

• back pay,
• job reinstatement,
• attorneys’ fees, and
• workers’ compensation, if the discharge impacted the claim.

Some states offer more in their workers’ compensation law. A few states, like California, add a penalty to the workers’ compensation benefits that the employee receives.²

Will I be on workers’ comp while the lawsuit is pending?

Yes, injured workers are usually able to collect workers’ compensation after being fired. This is true, regardless of whether the termination was lawful or not. Discharging a worker does not absolve the employer of the responsibility to pay workers’ comp benefits. However, there are some important exceptions that can lead to a denial of disability benefits and wage loss.

One exception is if the worker filed a post-termination claim. Unless the hurt worker can overcome this defense, he or she will be denied coverage. Without coverage, the injured employee can struggle to pay for medical treatment for his or her work-related injury.

In some cases, the reason for the firing can also be used as a reason to deny workers’ compensation coverage. This can happen if the workplace injury happened while the worker was violating his or her employment contract.

For example: Mary crashes her forklift and gets hurt at her warehouse job. She files a claim for workers’ compensation and begins receiving temporary total disability benefits because her work restrictions keep her from working light duty. Then her employer learns that she was under the influence of alcohol when she crashed. Mary’s workers’ comp claim gets denied and her employer fires her for being drunk on the job.

A workers’ compensation attorney can help victims get coverage and fight back against the retaliation.

What is the law in California?

In California, state law provides strong protections to workers who file a workers’ compensation claim. Employees have a state constitutional right to file a claim for a work injury and receive workers’ comp benefits.³

California Labor Code section 132a LAB explicitly forbids employers from terminating or discriminating against an employee who has filed a workers’ comp claim. If the employer breaks this rule, the aggrieved ex-employee can file a wrongful termination claim and demand:

• a 50 percent increase in the workers’ compensation benefits, up to $10,000,
• reinstatement, and
• back wages.⁴

Employers are also guilty of a misdemeanor for violating Section 132a.

Workers have 1 year from the date of their termination to file a 132a claim.⁵ Unlike the actual workers’ compensation claim, which gets handled by the employer’s insurer, 132a claims are filed against the employer, itself.

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