March 28, 2018

By: Sandra Weigel Kokal

If you file a claim for workers’ compensation benefits and your employer fires you, you may have a claim for retaliatory discharge.

To do so you must establish a “prima facie” case of retaliation. This means you must prove the following:

  1. You were engaged in a protected activity (you were properly performing your job);
  2. your employer took an adverse employment action against you (fired you); and
  3. a casual nexus existed between the protected activity and the adverse employment action (you got hurt doing your job, filed for workers’ compensation and employer fired you).

Once you establish a “prima facie” case of retaliation, the burden shifts to your employer to prove otherwise. Your employer must provide a legitimate reason for firing you. If your employer offers a legitimate reason for firing you, you have to prove that  reason was a pretext and that the real motive was the workers’ compensation claim. You must show that the employer’s reason for firing you was fake and/or made up.

In a recent case, an employee was injured on the job and the company doctor stated his injury was work-related. The employee was in the process of applying for workers’ compensation benefits with the help of the company doctor. The employer fired him 2 days later for “working unsafely.” The Court found this was a retaliatory discharge.

If you are injured on the job, file for compensation benefits and are then terminated, you should seek the help of an attorney.