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Containing the growing risk of workers' compensation retaliation claims

There is little doubt that claims alleging workers' compensation retaliation are growing and OSHA is cracking down on employers that discourage the reporting of injuries or retaliate against those who do. The story is told in the following examples:

Nicolas A. Dibble points out in the article, The Risk of Retaliation, four reasons for the high value awards in such cases:

  1. Public awareness. Ramped up advertising by attorneys coupled with headline-grabbing jury verdicts is a recipe for increased claims.
  2. Public perception. Jurors tend to believe that employers retaliate.
  3. Timing. An employee who seemingly has sacrificed physical health in the employer's service and is denied a workers' comp claim and then terminated can win over a sympathetic jury.
  4. Fraud. Advertising and social media encourage the reporting of insurance fraud. An unintended consequence is a "contention among workers that employers believe all claims are fraudulent."

How to avoid workers' comp retaliation claims

While there are times when discipline or termination of a workers' compensation claimant is warranted, it is bad timing and the legal risks are significant. Most states have laws that prohibit employers from retaliation against employees who file a claim. In effect this means that a detrimental change in the employment relationship cannot occur - termination, demotion, lower pay, unwarranted disciplinary actions and so on.

Unless there is a well documented and proven egregious act or misconduct:

Positive steps employers can take: