December 29, 2022

Avoiding Worker's Compensation Retaliation Claims in the Construction Industry

You've Reached Your
Free Article Limit This Month
Register for free to get unlimited access to all OnPractice content.
Register Now

Even with the strictest compliance with Occupational Safety and Health Administration (OSHA) regulations and best workplace safety practices, on-the-job injuries from time to time are inevitable in the construction industry. Many states have enacted powerful protections for workers filing worker's compensation claims, or exercising related rights, to guard against retaliation by employers. These anti-retaliation protections may include both civil and criminal liabilities and strong remedial schemes.

Texas, for example, makes it unlawful for employers to discharge or in any other manner discriminate against an employee because the employee has:

  1. Filed a workers' compensation claim in good faith;
  2. Hired a lawyer to represent the employee in a claim;
  3. Instituted or caused to be instituted in good faith a proceeding under the Texas Workers' Compensation Act; or
  4. Testified or is about to testify in a proceeding under the Act.

Texas Labor Code § 451.001.

A worker whose rights have been violated can file a civil lawsuit for reinstatement, lost wages and benefits, mental anguish, and even punitive damages. The worker also has the right to a jury trial. Other states, such as Florida, Illinois, and New Jersey, similarly permit a claimant to file a lawsuit for retaliation.

Certain states, instead, allow claims to be made to their administrative agencies. California Labor Code Section 132a provides that an employee subjected to worker's compensation retaliation is entitled to have their compensation increased by half (up to $10,000) and to seek reinstatement, back pay, and benefits from the Workers Compensation Appeals Board. Further, the employer may be held liable for a misdemeanor by referral to the Division of Labor Standards Enforcement. Similarly, New York permits an administrative complaint of retaliation with the New York Worker's Compensation Board, which may order a worker's reinstatement and order "make whole" remedies to the employee under New York Workers' Compensation Law § 120.

Whatever remedial scheme exists in a particular state, the consequences can be costly to an employer found in violation. For instance, an Illinois jury awarded $2.6 million to a worker where the employer was found to have changed excused absences to "no-call, no-show" after the employee filed for worker's compensation.

Significantly, federal statutes that permit parties who have been sued to remove (transfer) certain cases or claims from state court to federal court specifically except claims arising under state worker's compensation laws. Thus, where a private right of action exists, an employer might be forced to defend a non-removable retaliation case in state court, which, in many instances, a less favorable forum.

The worker claiming retaliation bears the burden of proof to establish retaliatory intent. Nevertheless, fighting worker's compensation retaliation claims can be risky. The worker may be seen sympathetically, having sustained a work-related injury only to be followed (causally or not) by some adverse employment action. Additionally, with a finding of retaliatory intent, it is often not too far a stretch to find a basis for awarding punitive damages.

Claimants can rely on direct and circumstantial evidence. Sometimes an employer might have to walk a fine line — questioning whether an injury or need for treatment is legitimate, while respecting the injury reporting and claims processes and administering them even-handedly.

Best practices to minimize risk include ensuring that there is an available and reliable protocol for reporting on-the-job injuries for workers instituting claims and ensuring that human resources personnel have appropriate training.

As specific state laws govern potential claims for worker's compensation retaliation, employers should consult and seek advice related to specific states where you have employees. Jackson Lewis attorneys have a wealth of experience across the country handling retaliation claims and providing guidance regarding best practices.

©2022 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Focused on labor and employment law since 1958, Jackson Lewis P.C.'s 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. We help employers develop proactive strategies, strong policies and business-oriented solutions to cultivate high-functioning workforces that are engaged, stable and diverse, and share our clients' goals to emphasize inclusivity and respect for the contribution of every employee. For more information, visit

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Jackson Lewis P.C.

Challenging OSHA Violations at Occupational Safety and Health Review Commission Is Worth the Effort

By Melanie L. Paul Jackson Lewis P.C. May 26 , 2023

It is more important than ever that employers understand the serious long-term, non-monetary consequences of settling or accepting Occupational Safety and Health Administration (OSHA) citations.

New Washington Law Regulates Warehouse Distribution Center Worker Quotas

By Kathryn J. Barry Jackson Lewis P.C. May 26 , 2023

A new Washington law regulating employers’ use of production quotas or production standards for employees working at warehouse distribution centers (House Bill 1762) will go into effect on July 1, 2024.

Sixth Circuit Adopts New Standard to Decide Whether to Send Notice to Potential FLSA Opt-Ins

By David R. Golder Jackson Lewis P.C. May 24 , 2023

In a highly anticipated decision, the U.S. Court of Appeals for the Sixth Circuit has ruled it will not use the lenient, two-step procedure in deciding whether to authorize sending notice of a collective action to other workers under the Fair Labor Standards Act (FLSA).

More From Occupational Safety and Health

SCOTUS to Warhol Foundation: Your Use of Previously Licensed Work Isn't Fair

By Steven J. Wadyka Jr. Greenberg Traurig May 26 , 2023

On May 18, 2023, the United States Supreme Court issued its long-awaited decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case that presented the Court with an opportunity to bring clarity to the often highly subjective standards lower courts apply when deciding the issue of fair use of visual works of art under copyright law.

Supreme Court Issues Decision Sharply Limiting Clean Water Act Jurisdiction over Wetlands

By Bernadette M. Rappold Greenberg Traurig May 26 , 2023

Sometimes the most monumental Supreme Court decisions spring from the most modest facts.

Challenging OSHA Violations at Occupational Safety and Health Review Commission Is Worth the Effort

By Melanie L. Paul Jackson Lewis P.C. May 26 , 2023

It is more important than ever that employers understand the serious long-term, non-monetary consequences of settling or accepting Occupational Safety and Health Administration (OSHA) citations.

Featured Stories