The great majority of jurisdictions that have dealt with the issue, either by decision or statute, recognize the tort of retaliatory discharge for filing a workers compensation claim [see Larson’s Workers’ Compensation Law, § 104.07]. Two decisions released last Thursday, one by a U.S. District Court [Northern District, Illinois], the other by a Utah appellate court, make a reasonable, although not-so-obvious point–that notwithstanding the use of the term “retaliatory” to describe the discharge of the injured employee, the firing need not be later in time than the filing of the claim. As explained in these two recent decisions–and in a number of other decisions addressing the issue–if this were not the rule, an employer would have an incentive to discharge the employee as the first responders were carrying the employee away for treatment.
The Federal District Court’s Decision
In the first “pretaliatory” discharge case, Welch v. Veolia ES Solid Waste Midwest, LLC, 2013 U.S. Dist. LEXIS 137965 (E.D., Ill., Sept. 26, 2013), a refuse collection driver, responsible for a residential garbage route that included picking up bulk items such as couches and mattresses, alleged that he experienced shoulder pain one day while lifting a number of heavy objects, but did not report the injury because he thought it would be better the next day. The pain worsened the following day, however, and another worker noticed that Welch’s shoulder was red and swollen. He was directed to complete an injury report, which he did. He attempted to work that day, but before the end of the shift, he was told to get his should medically checked. A couple of days later, Welch spoke with the employer’s human resources manager about the pain in his shoulder. The manager sent an e-mail message to the general manager, indicating that Welch had disregarded company safety policies by lifting a can that was too heavy, that the injury was “deemed preventable” and, in a parenthetical note, observed that Welch was “on the repeater list with this.” This latter statement might have related to the fact that Welch had filed between five to ten workers’ compensation claims during the several years leading up to this particular incident.
The next day, supervisors notified Welch that he was subject to disciplinary action for failing to report an accident or injury–company policy required that such an incident be reported by the end of the work day; Welch had completed a daily work sheet on the day he initially felt pain stating that there had been no injuries that day. The supervisors completed a disciplinary report that concluded that termination was appropriate, citing “dishonesty, failure to report an injury, violation of work/safety rules, and falsification of company documents” as reasons for termination. Later that day the supervisors had another meeting with Welch during which they told him that he was terminated. Two days later, Welch filed his workers’ compensation claim.
Citing Gordon v. FedEx Freight, Inc., 674 F.3d 769, 773 (7th Cir. 2012), the court indicated that in order to establish retaliation, Welch was required to show: (1) his status as an employee of the defendant before injury; (2) his exercise of a right granted by the Workers’ Compensation Act; and (3) a causal relationship between his discharge and the exercise of his right. The court added that courts have recognized three circumstances in which an employee has exercised a right under the Act that can give rise to a retaliation claim: (1) where the employer takes action after an employee merely requests and seeks medical attention; (2) where the employer takes action after an employee files a workers’ compensation claim; and (3) where an employee is preemptively fired to prevent such a filing. The court stated that Welch fit the first of the categories, that an employee discharged after informing his company that he has been injured and intends to seek medical attention has a claim for retaliatory discharge.
The court continued that while there was no direct proof that the employer improperly discharged Welch, retaliatory discharge could be shown by circumstantial evidence. The court observed that while the employer denied that it terminated Welch for exercising his workers’ compensation rights, it did not deny that Welch’s injury report caused his termination. The employer argued that it was the timing of that report, not the report itself, that was significant. But the employer did not suggest that Welch’s discharge was caused by some other event such as a reduction in force, excessive absenteeism, or poor performance. Here, the competing claims of Welch and the employer were really two different interpretations of the same event.
Finally, the employer argued that even if Welch could establish causation, his claim still failed because the employer had a legitimate reason for terminating him. The court agreed that once an employer articulated a legitimate reason for the discharge, the burden shifted to the plaintiff to show that the employer’s reason “was unworthy of belief.” In order to do this, the court indicated that Welch must show that: (1) the proffered reasons are factually baseless, (2) the proffered reasons were not the actual motivation for the discharge, or (3) the proffered reasons were insufficient to motivate the discharge. The court said it was undisputed that Welch reported the injury at the start of his next shift, less than 24 hours after it occurred, and there was no evidence that Welch made any attempt to conceal that he was injured. The evidence established that Welch’s injury report, if not “immediate,” was made as soon as possible. Further, Welch’s report satisfied the stated goals of the employer’s policy: ensuring that the injury occurred on company time, and ensuring that employee injuries were treated promptly. In summary, the court concluded that on the evidence before it, a reasonable jury could conclude that the employer’s stated reason was no reason at all. Therefore, the employer’s motion for summary judgment was denied.
The Utah Decision
In the Utah case, Stone v. M & M Welding & Constr., 2013 UT App 233, 2013 Utah App. LEXIS 236 (Sept. 26, 2013), the appellate court reversed a decision that had granted summary judgment to the employer, holding that the employee had indeed stated a cause of action for retaliatory discharge in spite of the fact that his termination was eight months prior to the filing of his workers’ compensation claim. From the pleadings, it appeared that within four days of his injury, Stone informed the employer’s president that he wanted to file a workers’ compensation claim, that the employer’s president persuaded him not to do so, and that the employer held Stone’s position for him until he was able to return to work two months later. Later, however, Stone’s hours of employment were reduced. Still later, Stone informed the president (or the president’s secretary) that he intended to file a workers’ compensation claim based on his injury, but did not do so. One month later, when a customer filed a complaint against Stone and requested that he be fired, Stone asked for insurance forms to complete his workers’ compensation claim. He was fired the next day. He did not file the claim until eight months later.
The employer contended that it could hardly have “retaliated” against Stone since he did not file his claim until well after the termination. The appellate court said the timing of the claim filing was not controlling, that the public policy embodied in the Workers’ Compensation Act may be “brought into play” by conduct short of actually filing a workers’ compensation claim. The court indicated such conduct could include preparing a claim, notifying the employer of the intent to file a claim, or discussing the claim with coworkers. The court further reasoned that a rule protecting employees only after filing would create “a perverse incentive for an employer to discharge an injured employee as soon as the employer learns of the employee’s intention to file a claim.” While the employer might indeed prevail, summary judgment was not appropriate.
It should be stressed that in neither of the cases discussed above has the terminated employee actually prevailed; both must prove their firings were the result of their efforts to seek workers’ compensation benefits. On the other hand, an employer should not be lulled into thinking that because a claim has not yet been filed by an injured worker, that it can act with impunity. If the employer is being fired for poor performance unrelated to the work-related injury, those performance issues should be documented and communicated to the employee. Employers should be particularly careful when terminating an employee for a safety violation that has caused an injury. Virtually all jurisdictions are slow to assign blame within the workers’ compensation setting [see Larson’s Workers’ Compensation Law, § 33.02]. Where employee misconduct involves a violation of regulations or prohibitions relating to the method of accomplishing the ultimate work, the act is usually said to remain within the course of employment and the employee should be awarded workers’ compensation benefits. Under those same facts, terminating the employee for violation of policy could easily reach back and bite the employer.