SHARE

FEATURED STORY 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 Law.com 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 https://www.jacksonlewis.com.

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.

New Jersey's Expanded Mini-WARN Law to Take Effect April 2023

By Timothy D. Speedy Jackson Lewis P.C. January 13 , 2023

After a two-year delay, the amendment to the New Jersey Millville-Dallas Airmotive Plant Job Loss Notification Act, the state’s mini-WARN law, will take effect on April 10, 2023.

A Deeper Dive Into FTC's Proposed Non-Compete Rule

By Clifford R. Atlas Jackson Lewis P.C. January 10 , 2023

The Federal Trade Commission (FTC) proposed a new rule that, if made final, would (at least on its face) effectively prohibit non-compete agreements other than in very limited circumstances.

Guidance on ADA Accommodations and Medical Restrictions' 'Plain Meaning' From Federal Appeals Court

By Brian L. McDermott Jackson Lewis P.C. January 10 , 2023

The federal appeals court in Chicago has provided helpful guidance on employers’ obligation to accommodate qualified individuals’ medical restrictions under the Americans with Disabilities Act (ADA) in a case involving a correctional officer.

More From Occupational Safety and Health

One Man's Trash Is Another Man's ... House?!

By Christine S. Varghese Ingram Yuzek Gainen Carroll & Bertolotti January 26 , 2023

Would you live in a house made of recycled plastic water bottles?

Judge Tosses First Amendment Defense In Yuga Labs V. Ryder Ripps

By Mioko C. Tajika Ingram Yuzek Gainen Carroll & Bertolotti January 24 , 2023

On December 16, 2022, a federal district judge in California denied artist Ryder Ripps’s and his partner’s anti-SLAPP motion and motion to dismiss in a closely monitored action filed against them by Yuga Labs, Inc. (“Yuga”), the creator behind the monumentally successful Bored Ape Yacht Club (“BAYC”) NFTs.

5 Trends to Watch in 2023 International Arbitration

By Joseph J. Mamounas Greenberg Traurig January 19 , 2023

To meet demand for more flexible and timely ways to achieve dispute resolution, some clients are turning to emergency arbitration procedures as ways to not only preserve the status quo but also obtain an early assessment of the merits (through the lens of the likelihood of success).

Featured Stories
Closeclose
Search
Menu

Working...