Did you injury yourself at work? Did you file a workers’ compensation claim? Were you terminated thereafter? If you answered yes to all the above questions, you may have a claim for workers’ compensation retaliation.
Texas law provides protection for Texas workers filing for workers’ compensation and those testifying in workers’ compensation proceedings from retaliation by employers. Specifically, Section 451.001 of the Texas Labor Code provides that “A person may not discharge or in any other manner discriminate against an employee because the employee has:
- filed a workers’ compensation claim in good faith;
- hired a workers’ compensation lawyer to represent the employee in a claim;
- instituted or caused to be instituted in good faith a proceeding under [the Texas Workers’ Compensation Act]; or
- testified or is about to testify in a proceeding under [the Texas Workers’ Compensation Act].”
Section 451.001 offers protection for employees for many actions they might take involving filing a workers’ compensation claim, and may include protection for actions taken prior to actually filing a claim. Similarly, the law provides protection against many adverse actions an employer might take in retaliation for an employee’s filing of a workers’ compensation claim.
At trial, the employee must prove that but for the filing of the workers’ compensation claim the discharge would not have occurred when it did. The employee need not prove that retaliation was the sole cause of his/her termination. Rather, they must show that, “but for” the filing of the claim, the discharge would not have occurred when it did.
Courts consider several factors as circumstantial evidence sufficient to establish a causal link between filing a compensation claim and subsequent termination of employment, including (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and, (5) evidence that the stated reasons for the discharge was false.
An employee who can prove that he/she has been discriminated against for his/her involvement in a workers’ compensation claim may be entitled to (1) reinstatement in their former position; (2) monetary damages for lost wages, past and future; (3) monetary damages for mental anguish, inconvenience, etc.; (4) punitive damages; and (5) injunctive relief.
For this law to apply, the employer must be a participant in the Texas workers’ compensation system. Texas allows employers to opt out of workers’ comp – and some do. Unfortunately, Texas still allows those opt-out employers to retaliate against an injured employee due to suffering a work injury – although other laws, such as the Family & Medical Leave Act, may provide that injured employee with some other protections.
If your employer terminated you for pursuing workers’ compensation benefits or for hiring an attorney to represent you in your workers’ compensation claim, you may be able to file a lawsuit in accordance with Texas state law. Contact Juan to schedule a free consultation so that he can determine whether or not your employer violated state law when it terminated you for pursuing your benefits.