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Ins and Outs of Retaliation Cases

As we awaited our opening statements, I looked over at the opposing counsel's table and saw one of my toughest opponents in more than 30 years of defending employment-claim cases. He seemed to have all the facts on his side. Worse yet, he had the law on his side.

Does Not Matter that Worker's Comp Case Bogus

In retaliation cases, it matters not whether the initial workers' compensation claim filed was bogus or frivolous; a retaliation claim can be brought even on denied, rejected or even frivolous workers' compensation claims as long as the discipline, discharge or termination decision was related to filing of the workers' compensation claim. The timing of the discharge was within three weeks of his client's filing of her workers' compensation claim, and the decision may have been earlier. Never mind that his client was absent from work more than 80 times in 18 months.

In addition, on the facts side, this opponent demonstrated that under an absentee points system, his client was the only one fired without achieving the full seven absentee points, the threshold for discipline or discharge. The company had to admit an error in adding up the discharge points, and they were at least 1/10 short of the threshold.

Fortunately, the company had a second absenteeism rule under its disciplinary policy for "excessive absenteeism," which could, under some definitions, include excused and unexcused absences. Only unexcused absences counted toward the seven-points rule.

How then can an employer battle these retaliation claims when the law is so favorable to plaintiffs and where managers and owners seem to step in this fiery litigation inferno while lacking adequate policies? How can stray remarks about the terminated employee be defended when they seem so personal, so retaliatory when directed at the one person who recently filed for workers' comp benefits? When the plaintiff's attorney is able to "set up" management by asking in depositions if they produced all documents related to this termination decision and related policies and they answer "yes," but later admit that additional documents exist—how can inferences of fair treatment remain with the company?

Retaliation Cases Turn on Management's Fairness

Retaliations appear to be more of a test of management's fairness in treatment of employees, then an examination of the terminated employee's particular claims. If the focus of these trials turns on management and not on the terminated employee, management frequently will lose. Many cases we have defended were triggered by management quotes or conversations. Some of these include statements and situations such as:

  1. Our workers' compensation claims are too high; we need to get control of them, and I want you employees to use your personal insurance or group insurance if you get hurt at the company.
  2. Now that the employee's workers' compensation claim has been denied, we can fire him.
  3. Following a three-finger amputation of an operator in a power press, the president of the company drove the employee to a clinic and tried to hide the records from any workers' compensation claim, and convince the employee to say that he was injured at home.
  4. After the workers' compensation claim is settled and partial disability paid, the employee is quickly terminated.
  5. A short window existed between the filing of the workers' compensation claim and the employment termination decision.
  6. If our experience modification workers' compensation factor rises above 1.0, people will lose their jobs.

All of these pattern retaliation cases had claims exceeding $2.5 million on behalf of the suing employee. So did a recent case where a truck driver who injured his back was unable to perform his duties when returning to work. The company president reportedly told his managers that no cripple was going to drive any of his trucks again.

Retaliation Cases Top Civil Recovery Tool

Retaliation theories have become a top civil recovery weapon for workers fired due to related filing of their workers' compensation claims. In fact, here in Washington, our state Supreme Court held that supervisors who discriminate, retaliate or harass an employee can be held individually liable for their actions. That contrasts with some federal Circuit Courts where individuals are not personally liable under Title VII of the Civil Rights Act. In those states, separate lawyers normally have to be hired for the supervisor in view of that separate liability beyond that of the corporation.

Although one California worker wasn't fired because of his race or age, he still obtained a $2.8-million jury verdict on his claim that he was retaliated against for bringing a previous discrimination lawsuit four years earlier. (Moland v. McWane, Inc. et al., LA County Sup. Ct., Case No. BC559796 (2015.))

Many of these types of claims settle for in excess of $500,000 in mediation, especially in states where punitive damages are allowed because punitive damages are frequently brought based on managers' or owners' adverse statements on workers' compensation costs or claim filing.

Retaliation Claims Authorized by Federal Law

Retaliation claims are authorized by Title VII, ADA, the ADEA, the Equal Pay Act, OSHA, numerous other federal laws and almost always by state workers' compensation or discrimination laws. It is getting to be that nearly one-fourth of all claims filed with the EEOC agency are premised on a retaliation claim.

Why are retaliation claims growing? The main reason is that it is easier to prove retaliation than discrimination. Managers look at the fact that the employee was fired only days or weeks after filing a workers' compensation claim or an EEO charge. Retaliation cases are easy to prove when this short window of timing occurs between the two events. There is no such shortcut of proof in discrimination cases. Juries seem more inclined to believe that someone would retaliate than discriminate based on race, sex or other protected minority-status factors.

How to Prevent Retaliation Claims

So,what can employers do to prevent these easy-to-prove retaliation claims? First, they must have up-to-date policies enforced uniformly against retaliation for public-policy reasons. But far beyond policies, management needs to fairly treat employees filing such claims even when workers' compensation costs are soaring, avoid speeches that associate a negative attitude with the filing of a claim and stress safety throughout the workplace.

Management also should check whether there is maliciousness or meanness in the treatment of an employee prior to being terminated after a workers' compensation claim has been filed and make sure that the timing of the decision is not related to the prior claim filing. The larger verdicts seem to come from the fact that retaliation is viewed as a manager's reaction (to get even) to the worker's filing for benefits.

Sensitive terminations should be discussed in advance with legal counsel to ensure that due process is involved in the decision and allow a more independent evaluation of whether the events are caused by, or related to, each other.

In some states, advanced consulting with legal counsel can be argued as a potential defense to punitive damages, although this is not itself a perfect defense, but it does seem to help when a company explains that it even sought legal counsel prior to the termination. Plaintiffs' lawyers seem to confirm this defense by trying to strike as witnesses for the defense any company or outside attorney who reviewed the termination prior to its implementation.

When defending these cases, promptly obtain legal counsel that will investigate intensively the plaintiff's background where a number of damages or claim-reducing facts can be discovered. We always use a private investigator to check into statements made by the ex-employee on his job application and into the allegations concerning the particular charge. Also, check into other job applications that the ex-employee may pursue after being terminated.

Supervisors and managers should be trained on the avoidance of retaliation so that misstatements and pitfalls can be avoided.

Employers need to be clear that employees have the right to complain, and that right is protected. The courts appear to agree that a plaintiff can win a retaliation claim even when the underlying claim was not valid or was denied. Further, employers should be aware that where the complaining consisted of filing a charge, comp-claims benefit or OSHA complaint, it is not necessary that an employee hold a reasonable or good-faith belief that the employer did anything wrong. In other words, frivolous complaining is protected.

Employers do have termination and discipline rights. Employees do not have a license to abuse absenteeism rules, to stop performing their jobs at an acceptable level or to be insubordinate. Management still retains its legitimate right to schedule and discipline its workforce.

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