Handling Employer Retaliation After a Work Injury: Your Employer Cannot Fire You For Filing a Workers Compensation Claim

 

In Virginia it is Unlawful for an Employer to Retaliate Against an Injured Employee Just Because That Employee is Seeking Workmans Comp Benefits

 

Many injured employees either wait to file or refuse to file a workers compensation claim in Virginia because of fear.

 

Fear of getting fired and losing their job.

 

Fear of having to go weeks or months without a paycheck while their bills continue to pile up.

 

Fear of not having the physical or financial means to take care of their spouse and children.

 

And fear of having to start over with a new career or with a new employer.

 

This fear is a powerful weapon that employers and insurance companies use to their advantage after an employee is hurt in an accident at work.

 

Time and time again I have met with injured employees and family members who are hesitant to file a workmans comp claim because they’re worried that their boss will fire them.

 

Instead of pursing the workers compensation benefits they’re entitled to, some of these employees use their own sick and vacation days if they miss time from work due to an injury. Others tell the medical providers with whom they treat to bill their private health insurance coverage for the work injuries. These are mistakes that can have serious consequences in the future.

 

I understand that some employers ask their workers not to file a claim for workers compensation so that their insurance premiums don’t go up or so that their record with OSHA stays clear. This is an example of workers comp fraud.

 

I also understand that many employers, especially small and mid-size employers, start to treat injured workers differently when a claim is filed with the Workers Compensation Commission. This is unfair. But there is nothing that you – the injured worker – can do about that.

 

I have some good news though. Virginia law protects injured employees from retaliation for filing a work comp claim.

 

This article discusses:

 

  • The Virginia Code section that protects injured employees from retaliation

 

  • The types of employer conduct you are protected from when seeking workmans comp

 

  • The civil action available to injured employees whom are fired for intending to file or filing a workers comp claim

 

  • The rationale for Virginia’s law protecting injured employees from being fired for filing a workers comp claim – and why you’re protected if your employment is at will

 

  • Why choosing not to file for workers comp to try to save your job may backfire

 

  • How to determine if you have an employment retaliation case based on your workers compensation case

 

  • What you can do if you’re fired, disciplined, or demoted for filing a workmans comp claim in Virginia

 

Read on to learn more about your right to seek workers comp benefits in Virginia without interference from your employer.

 

And if you have any questions about workers comp, or are looking for a top-rated work injury attorney in Virginia, call me today for a free consultation: 804-251-1620 or 757-810-5614. I help injured employees across the state qualify for benefits, win at trial, and negotiate top-dollar Virginia workers compensation settlements. And I want to help you.

 

Virginia Code Section 65.2-308 Makes it Unlawful to Fire an Employee for Exercising His or Her Right to Workers Comp

 

In Virginia your employer cannot fire, demote, discipline, or retaliate against you in any way just because you filed a claim for workers comp benefits.

 

Like many other states, Virginia makes it unlawful for an employer or person to retaliate against an employee solely because the employee intends to file or has filed a claim for workers compensation benefits. Virginia Code Section 65.2-308, entitled Discharge of Employee for Exercising Rights Prohibited; Civil Action; Relief, states:

 

No employer or person shall discharge an employee solely because the employee intends to file or has filed a claim under [the Workers Compensation Act] or has testified or is about to testify in any proceeding under [the Workers Compensation Act]. The discharge of a person who has filed a fraudulent claim is not a violation of this section.

 

Let’s break this statute down.

 

First, your employer cannot terminate you solely because you are thinking of applying for workers comp benefits after an on-the-job injury or the diagnosis of an occupational disease. You can – and should – report your work injury immediately and ask for your employer’s workers compensation insurance information. This activity is protected.

 

Second, your employer cannot fire you solely because you filed a claim for benefits with the Commission. You can seek temporary total disability, permanent partial disability, vocational rehabilitation, and lifetime medical benefits without fear that you will be fired lawfully for doing so.

 

Third, your employer cannot fire a co-worker for testifying on your behalf at a workers comp hearing.

 

After your workplace accident write down the names of all co-workers who witnessed your accident. Then provide this list to your attorney to investigate if your claim is disputed.

 

Testimony from a co-worker is helpful in disputed claims. And your co-workers may be more likely to testify on your behalf if they are not worried about losing their jobs by doing so.

 

Fourth, your employer cannot terminate you because you hired a workers compensation attorney.

 

Finally, you do not get protection from employer retaliation if your workers compensation claim was fraudulent or not brought in good faith. This is not, however, the same thing as losing your claim. You get protection from employer retaliation if you brought your workers comp claim in good faith, even if the Commission denies it.

 

You Are Also Protected from Demotion or Discrimination Based Solely on Intending to File or Filing a Work Injury Claim

 

If you are injured in a workplace accident or diagnosed with an occupational illness you are protected not only from termination based solely on pursuing workers comp benefits but also demotion or discrimination based on pursuing your rights.

 

An employer may not take the following actions solely because you seek workmans comp benefits or testify at hearing:

 

  • Demotion: Your employer may not demote you to a lower position in the company or give you fewer job assignments or lower pay because you are seeking or have sought workers comp benefits.

 

  • Discrimination: Your employer may not discriminate against you or treat you unfairly for intending to file or filing for workers comp. You may also have protection from discrimination based on a physical or mental disability under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).

 

  • Other Forms of Workplace Retaliation: Your employer may not mistreat or harass you for applying for workers comp. It may also take unwarranted disciplinary action.

 

Virginia Code Section 65.2-308 Provides a Civil Action to Employees Terminated, Demoted, Discriminated Against, or Mistreated Because They Intend to File or File a Workers Comp Claim

 

Virginia Code Section 65.2-308(B) provides the cause of action available to an employee alleging that he or she was terminated solely because of a workers comp claim. It states:

 

The employee may bring an action in a circuit court having jurisdiction over the employer or person who allegedly discharged the employee in violation of this section. The court shall have jurisdiction, for cause shown, to restrain violations and order appropriate relief, including actual damages and attorney’s fees to successful claimants and the rehiring or reinstatement of the employee, with back pay plus interest at the judgment rate as provided in § 6.2-302.

 

Circuit court, not the Workers Compensation Commission, has jurisdiction over the cause of action. You must file your complaint in the appropriate circuit court.

 

The circuit court has authority to award monetary damages and reinstatement.

 

Depending on the facts of your case and damages sought, you may have the right to a jury trial for employer retaliation based on a workers comp claim.

 

Public Policy Protects Your Right to Pursue Workers Comp Benefits, Even if You’re an At-Will Employee

 

Most of you work at will. This means that your employer can terminate you for any reason or for no reason whatsoever, so long as the reason is legal. It also means that you can quit your job at any time for no reason or any reason at all. At will employment works both ways. If you don’t know whether your employment is at will then chances are good that it is.

 

Fortunately Virginia recognizes certain exceptions to at will employment. One of these exceptions is the public policy exception. This exception makes it unlawful to terminate an employee if the termination violates either one of the state’s public policy doctrines or a specific statute.

 

By passing Code Section 65.2-308, Virginia has stated that protecting employees who either want to file a workers compensation claim or to testify at a workers compensation hearing is valid public policy. It is therefore illegal to fire an employee who files a claim for benefits, regardless of the type of worker he or she is and what type of accident he or she was injured in. You are protected even if you don’t have a written employment contract.

 

Why Choosing Not to File for Workers Comp to Save Your Job Can Hurt You in the Future

 

If you have private health insurance and are worried about losing your job then you may think you’re better off choosing not to file for workers comp after an on the job injury. But you may run into problems down the road if you do this.

 

Your private health insurance company may review the medical records and determine that your employer’s workers comp insurance company is responsible for treatment. If this happens then the private health insurance company may ask you to reimburse it for money paid on your behalf. Or it may retract payments made, in which case your health care provider may sue you for payment.

 

Using private health insurance instead of filing a workers comp claim can turn into a financial nightmare far worse than if your employer tries to retaliate against you.

 

And even if you don’t file a claim, your employer may start to look for ways to fire you if you get hurt at work.

 

If your employer is smart then it will not come right out and say you’re fired because of the work injury or a workers’ comp claim. But it may monitor your job attendance and performance closely. Any mistake you make may be used against you.

 

If you wait to file a workers comp claim until after the employer treats you differently, you may be barred from receiving benefits due to the notice requirement or statute of limitations.

 

For these reasons workers compensation is often the best option if you’re hurt on the job.

 

How to Determine if You Have an Employer Retaliation Case Based on Your Workers Comp Claim

 

You do not have unlimited job security just because you were hurt on the job.

 

You must prove that your employer’s action (termination, disciplinary action, demotion, etc) was because of the workers’ comp claim to win an employment retaliation claim. This is usually done through inconsistent statements from the employer, documents, and the timing of the retaliatory action.

 

Your employer can still terminate you legally so long as it does so for reasons that are unrelated to your filing of a workers compensation claim or your decision to testify at hearing.

 

If you were hurt at work and got fired or demoted, see if one of these situations applies:

 

1. Positive Drug Test. Many employers and insurers require injured workers to take a drug test after a workplace accident. If you are fired because you failed that drug test and tested positive for drugs or alcohol at the time of your injury, you should contact a workers’ compensation attorney immediately. The employer may be able to terminate you for violating their drug policy. But you may be entitled to workers compensation benefits if the alcohol or drugs did not cause your accident. You’ll need an attorney to help you fight the intoxication defense and to guide you through the job search and marketing process.

 

2. You Were Fired While the Doctor Has You Out of Work. Unfortunately the Virginia Workers Compensation Act does not provide job protection. Your employer may terminate you if you’re unable to return to work or if it does not have work available within your light duty restrictions. Of course state and federal employment laws, such as FMLA, may apply and provide limited job protection. If you’re fired because the employer does not have work available within your restrictions then you may be entitled to ongoing workers compensation wage loss benefits.

 

3. You Violated a Safety Rule or Company Policy. Your employer may terminate you lawfully if it has a reasonable basis for doing so. If you violated company policy or a stated safety rule, and that violation caused the work injury, your employer may discipline or fire you. Contact a workers compensation attorney if your employer fires you for this reason. You may be able to overcome a willful misconduct defense to get the workers comp benefits you need. In my opinion few “willful misconduct” defenses are valid.

 

If one of these situations applies, then it’s unlikely that you have a retaliation case based on being fired for filing a workers compensation.

 

Were You Terminated or Disciplined for Filing a Workers Compensation Claim? Call a Lawyer Now.

 

If you need help after a workplace accident, or think that your employer retaliated against you and fired you because you filed a workers compensation claim in Virginia, call, text, or email me for a free consultation: 804-251-1620 or 757-810-5614.

 

I represent all types of injured workers in all types of work accidents that happen in Virginia. No matter where you’re located – Richmond, Newport News, Virginia Beach, Fairfax, Harrisonburg, Manassas, Charlottesville, or Roanoke – I can help.

Corey Pollard
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