Labor: 3 strategies for handling workers’ compensation retaliation claims

Employers often are unclear regarding their obligations to return an employee to work while claims are pending

Most employers are familiar with the increase in retaliation claims filed either as independent actions or in conjunction with Equal Employment Opportunity Commission and related employment claims. The increase in retaliation claims is attributable, in part, to the 2006 Supreme Court ruling in Burlington Northern & Santa Fe Railway Co. v. White. In that case, the Supreme Court abrogated decisions from multiple districts and broadened the definition of “adverse employment action” as a necessary element to sustain a retaliation claim. The other elements include engaging in an activity protected by Title VII, the employer’s knowledge of the employee’s exercising of the right, and a causal connection between the protected activity and the adverse employment action or harassment.

Workers’ compensation retaliation claims, however, arise purely out of state claims. The concept is that employers should not retaliate or discriminate against employees for filing or receiving statutory workers’ compensation benefits for compensable work-related injuries. It is not only the termination of an employee that triggers a claim. It could be any employment action that allegedly results from the employee’s claim, including reduction in benefits and reassignment to a different position or location. The actual payment or denial of the underlying workers’ compensation claim is not a pre-requisite. The threshold is whether the employee has claimed a work-related injury.

Contributing Author

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Cheryl Wilke

Cheryl Wilke is a partner in the Ft. Lauderdale office of Hinshaw & Culbertson and focuses her practice in the representation of employers in...

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