If you’re injured at work, you may be worried about filing a workers’ comp claim. You may be concerned that your employer will be upset with you or even take retaliatory steps, such as demoting you or firing you.
Unfortunately, it’s possible for employers to retaliate if they don’t want to pay the cost of a workers’ comp claim or see their insurance premiums go up. But the good news is that laws in many states, including North Carolina and Virginia, prohibit employers from taking action against an employee who files a workers’ comp claim or engages in other related activity.
What is a retaliation claim?
To qualify for workers’ compensation, you generally must be an employee (as opposed to a contractor). Establishing a claim of retaliation for filing a workers’ comp claim requires you to show four things:
- that you were entitled to workers’ comp benefits;
- that you engaged in a protected activity, such as filing a claim for workers’ compensation;
- that you were the victim of an adverse employment action that affected the terms and conditions of your employment, such as termination; and
- that your employer took the adverse action because of your protected activity.
The definition of “protected activity” will depend on where you’re located, but generally, you’ll be protected if you tried to claim a benefit, even if you didn’t formally file a workers’ comp claim. If you told your employer that you planned to file a claim, that may be enough. It may even be enough if you simply suffered an injury on the job, depending on your circumstances.
What is an adverse employment action?
An adverse employment action is any one that negatively affects the terms and conditions of your work. So, for example, if an employer took some of your job responsibilities away, demoted you to a lesser role, decided to pay you less, disciplined you, or fired you, these would be considered adverse employment actions.
The key—and this is sometimes hard to do—is linking the employer’s negative behavior to your claim. This is called establishing causation. You will have to show that your protected activity was the main reason that your employer took action against you. If you have other reasons in your employment file that might justify an adverse action, such as a poor performance review or a violation of company policy, you’ll have a harder time establishing your claim. Of course, the court will look at all factors. An experienced workers’ comp lawyer can help you study your particular circumstances, including the timing of the action and the company’s normal practices, to determine the strength of your case.
What should you do if you think you have a workers’ comp retaliation claim?
Time is not on your side, so you should talk to an experienced workers’ compensation attorney about filing a claim as soon as possible. You may have only a few weeks or months to file before you lose your right to take action.
If you have questions about a potential workers’ comp retaliation claim, we’re here to help. Reach out to our knowledgeable attorneys in Richmond, Virginia, and Charlotte, North Carolina now.