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

Posted on November 16, 2022

If you get fired for making a workers’ compensation claim, you can file a wrongful termination lawsuit. It does not matter if you are an “at will” employee since retaliation for invoking workers’ compensation rights is a clear violation of 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. An employer firing you because you filed a workers’ compensation claim is an act of retaliation. Under both state and federal law, retaliation is unlawful. You can file a lawsuit against your employer for violating the law by firing you.

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

This whole system gets undermined if employers could simply fire you if you make a workers’ compensation claim. You would likely forgo legitimate claims. 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 you for making a workers’ comp claim, you 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 if you are an at-will employee, you can file a wrongful termination claim if you 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.

If you are an at-will employee, you can be terminated or can quit at any time, for any reason. Most states presume that employment 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 you 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, you have a legal right to file a workers’ compensation claim. Being fired for doing so is contrary to public policy.

What damages are recoverable?

Different states provide different compensation if you have been unlawfully discharged for filing a workers’ comp claim. Generally, however, you 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 you receive.²

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

Yes, you are usually able to collect workers’ compensation after being fired. This is true, regardless of whether the termination was lawful or not.

Discharging you does not absolve your 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 you filed a post-termination claim. Unless you can overcome this defense, you will be denied coverage. Without coverage, you can struggle to pay for medical treatment for your 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 you were violating your 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 you get coverage and fight back against the retaliation.

What is the law in California?

In California, state law provides you strong protections for filing a workers’ compensation claim. You 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 you if you filed a workers’ comp claim. If your employer breaks this rule, you 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.

You have one year from the date of your 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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