Wrongful Termination Workers Comp

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 What is Wrongful Termination for Seeking Workers Compensation?

The vast majority of employees in the United States are considered at-will employees. This means the employer may terminate the worker’s employment at any time and for any reason. Employees also have the right to terminate their employment whenever and for whatever reason they wish.

At-will employment is the characterization used in employment agreements to describe the status of the employee. An employee is hired for an indefinite period of time and the employer can terminate their employment at any time without justification. At-will employment also means the employee has the right to terminate their employment at any time they choose. Any justification on the part of the employer for termination of employment is considered acceptable, as long as the justification is not illegal, such as discrimination.

There are, however, exceptions to at-will employment status. If the employer terminates employment for one of the reasons that are the exceptions, then the employer may be liable for wrongful termination. Wrongful termination occurs when a worker is fired for the following reasons:

Wrongful termination cases involving employees seeking workers compensation are examples of termination for a reason that most states consider an exception to at-will employment. This means that most states view firing in retaliation for making a workers comp claim as wrongful termination or retaliatory discharge.

Workers comp retaliation occurs when an employer fires a worker because they are about to or have filed a worker’s compensation claim for injury the worker sustained on the job. Should an employer act in retaliation and terminate an employee who has or is about to file a worker’s comp claim only because of their worker’s comp claim, they may have engaged in wrongful termination.

Other examples of at-will employment exceptions may include:

  • Termination based on gender, pregnancy, marital status, race, religion, age, national origin or disability;
  • Termination in retaliation against the employee for filing a complaint;
  • Public policy exceptions, such as termination for whistleblowing;
  • Termination in violation of an express or implied contract to the effect that the worker’s employment would not be terminated for a fixed period or would only be terminated for good cause;
  • Termination in violation of the company’s written termination procedures;
  • Other applicable exceptions that may exist in the law of the state where the employee works.

Exceptions may vary by state. Certain states may have additional exceptions for at-will employment.

What is Workers Compensation?

Workers compensation may be available to employees when they sustain an injury on the job. It is an insurance program in each state that provides compensation to employees who sustain work-related injuries. Monthly payments may be made regardless of whether or not the employee was at fault in causing the injury. It is important to note that employees receiving workers compensation cannot sue their employers for additional financial compensation.

Employees may be provided workers comp benefits including:

  • Income replacement;
  • Payment of d medical expenses; and/or
  • Payment for physical rehabilitation.

These benefits may be paid in installments over a long period of time or in one lump sum depending on what is appropriate in a given case.

An employer generally should continue the employment of a worker while their workers compensation claim is pending until the worker fully recovers from their injury or reaches maximum medical improvement. Maximum medical improvement (MMI) is the point at which the injured worker’s physical condition is not likely to improve with further treatment.

However, termination of employment while a worker is on workers compensation is not necessarily wrongful termination. Wrongful termination would be firing a worker in retaliation for filing a workers comp claim. Even an employee who is receiving or did receive workers compensation can be fired as long as the employer can prove that the firing was not in retaliation for the workers comp claim, but was otherwise justified, e.g. for the worker’s misconduct, incompetence or because the employer had to reduce its workforce for legitimate business reasons.

If an injured worker is still employed after receiving workers compensation and has reached maximum medical improvement, they should discuss with their treating doctor whether they have any permanent work restrictions. If they have fully recovered, they probably would not have any permanent work restrictions due to their work-related injury.

If a worker does have permanent work restrictions, they should discuss them with their employer, because their employer is required to make reasonable efforts to accommodate their new work restrictions so the worker can perform their job. If a worker’s employer can reasonably accommodate their restrictions, the Americans with Disabilities Act requires the employer to do so.

What is Required to Prove Retaliatory Discharge by an Employer?

If an employer terminates an employee after the employee has filed a workers compensation claim, the terminated employee may have a cause of action for retaliatory discharge.

The following elements must be proven to succeed with a claim for retaliatory discharge:

  • The employee was eligible for workers compensation and filed a workers compensation claim;
  • The employer fired, threatened to fire, or otherwise acted against the injured employee in connection with their employment;
  • The termination was directly related to the fact that the employee resorted to the workers compensation system; and
  • The worker suffered losses as a result of the termination.

It is important to keep in mind that if an employer has another compelling reason for firing a worker, the firing may not be retaliatory discharge, even if the worker has a pending workers comp claim. The employer still has the right to fire an employee for misconduct, incompetence, because financial circumstances necessitated a reduction in force or for any other valid reason the employer can prove.

However, the termination of the workers’ employment does not mean that any workers comp they are receiving will stop. If the employee is still entitled to workers compensation in whatever form, it must continue regardless of the termination.

What if I was Fired Before Filing a Claim?

Even if an employee is fired before filing a workers’ compensation claim, they may still be able to bring a successful wrongful termination claim. Depending on the state in which the firing occurred, if the employer was aware of an on-the-job injury and acted quickly to fire the employee before a claim could be filed, the employee may be able to claim retaliatory termination and recover compensation for their losses.

Is Constructive Discharge the Same as Wrongful Termination?

Wrongful termination and constructive discharge are not the same. Wrongful termination, or wrongful discharge, occurs when an employer terminates an employee for a reason that is not permissible as described above.

Constructive discharge occurs when an employee resigns from their position after experiencing unsafe working conditions that forced them to leave their job. These working conditions must be of a kind in which no reasonable person would or could continue working. Resignation from a job that entailed such negative working conditions as these is considered to be the equivalent of a dismissal by the employer, a constructive discharge.

The employee who was constructively discharged may be able to file a complaint against their former employer as if the employer had actively terminated the employee. The idea is the employer did effectively discharge the employee by creating intolerably negative working conditions.

What Remedies are Available for Wrongful Termination?

The goal of the remedies in wrongful termination cases is to restore an employee to the same condition they would have been in if they had not been fired. A common remedy for wrongful termination claims is money damages. This type of remedy is designed to compensate a former employee for the losses they incurred due to their wrongful termination, including:

  • Lost pay;
  • Lost benefits;
  • Pain and suffering;
  • Possibly court costs and attorney’s fees.


In the rare case where it is justified by the facts, punitive damages are possible. Also, reinstatement to their
former position may be an option in some cases.

Should I Hire an Attorney for Wrongful Termination after Seeking Workers’ Compensation?

Yes, it is important to have the assistance of an experienced workers compensation lawyer if your employer has taken any negative actions against you following a work-related injury. An attorney can review the facts of your case, evaluate whether a claim may be successful, and determine whether wrongful termination and/or constructive discharge occurred. An attorney can assist you in filing a wrongful termination claim and represent you during any court proceedings, if necessary.

In addition, if you are an employer facing a wrongful termination lawsuit, it is important to consult an employment lawyer. An employment lawyer can review the facts, determine if any defenses are available, and represent you during any court proceedings, if necessary.

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