Feb 15 The Dangers of Retaliatory Discharge
You have a problem with an employee and it’s been going on for months. They have continually failed to meet company expectations, stirred up trouble with fellow employees, tainted the workplace, and upset loyal customers.
It’s never an easy decision, but you’ve decided to let them go. They’ve also filed a workers’ compensation claim for an injury just when you decide to do so. Unfortunately, dismissing them could put your company in a precarious position if you do not handle it properly.
Watch for Retaliatory Discharge
Retaliatory discharge applies when a person does something they’re legally entitled to do, but the company dismisses them because of it. Examples include firing someone for refusing to discriminate against another employee or firing a person for speaking up about illegal or inappropriate behavior.
Even though your decision to dismiss the employee has nothing to do with their workers’ compensation claim, you need proof. Otherwise, the employee may claim they were wrongfully dismissed and sue for retaliatory discharge. The basis of the dismissal must not be the claim, but other substantiated reasons.
A lawsuit for retaliatory discharge can be very costly. If the court rules in the plaintiff’s favor, you’ll pay court and attorney fees and damages owed to the employee. This can include pain and suffering as well as lost wages and benefits.
Avoiding Retaliatory Discharge
The most obvious precaution a company can take to avoid a lawsuit is to keep accurate records. Document all conversations with the employee regarding their behavior and retain it after the dismissal.
Don’t make written or verbal mention of a connection between the dismissal and their workers’ compensation claim. Follow your company policies carefully and ensure you have a complete paper trail. If you’re unsure whether you can safely terminate the employee, seek legal counsel.
Retaliatory discharge may also be an issue if your business does not make proper arrangements for an injured employee returning to work after an injury. One Illinois court case awarded a man $4.26 million because the company stopped paying an injured employee when he needed intensive physical therapy, and they did not provide temporary total disability benefits either.
If you’re ever unsure of whether or not your specific situation could be seen as retaliatory discharge, it’s best to consult with a human resources attorney prior to terminating your employee. And of course, if you’ve got questions about choosing appropriate insurance, we can help. Gilbert’s Risk Solutions’ understands the intricacies of workers’ compensation insurance. We can advise which coverage suits your business to minimize risk and cost.
We’re local and reliable and we’ve helped people for over 160 years. Let us help you get the most out of your insurance.