An employee should never worry about being retaliated against for doing what they thought was right, especially when it comes to their own safety. Because workers worry that their employer will fire them for standing up for workplace rights, it’s often out of the question for an employee to feel they should report an injury or a workplace hazard. However, it doesn’t have to be that way.
Texas is an at-will state. That generally means that businesses can terminate an employee for no reason at all. However, there are some exceptions. Section 451 of the Texas Labor Code indicates that it is illegal for a company to discriminate against an employee for filing a workers’ compensation claim in good faith.
When memory is being tested, it often fails us. Having a written record of experiences will help ensure that all acts of retaliation are addressed.
That means that if your employer terminated you for simply pursuing workers’ comp benefits or even just speaking to a workers’ comp attorney, you may be protected.
Retaliation or discrimination in the workplace can mean different things. It isn’t always as simple as being fired for a workers’ comp claim. Retaliation acts are sometimes so subtle that it’s hard to recognize when one is falling victim to this sort of discrimination. When these acts stack together and cause a disrupting work environment for the employee, there might be cause for a wrongful termination claim.
The most obvious act of retaliation against an employee is a job termination. This can be masked as a “lay-off” or can start with a simple job demotion. If an employee is injured at work, files a workers’ comp claim, and then is suddenly fired, one should be cautious, especially if the employee does not have any suspensions or warnings on their record.
Another act of retaliation can come in the form of benefits or reduction in pay. If an employee is able to work full duty after an accident but the employer suddenly only needs the employee to work 12 hours a week, for example, there might be retaliation happening.
This can also be the case for benefits or promotions: if an employee is being denied certain privileges or is overlooked for a new rank, there could be something else happening.
Sometimes, an employee with an otherwise-stellar employment record suddenly starts receiving disciplinary actions for alleged poor performance after their work injury. This could be masked retaliation, where an employer is trying to create a paper trail of issues to allow for a more serious act of retaliation: termination.
Outright harassment in the workplace is also an act of retaliation. Whether it’s coming from coworkers or supervisors, no employee should feel unsafe or preyed upon in their workplace. Threats, intimidation, and name-calling are things to be on the lookout for.
So, what can an employee do if they feel that an employer is retaliating against them for their work injury?
First, an employee needs to be documenting their experience. This can come in the form of a journal or diary, or keeping track of all communications with the employer (texts, letters, and emails). Employees should ask for copies of all performance warnings and disciplinary actions for their personal records.
Next, one should make note of all the harassment, retaliation, and discrimination that is being experienced in the workplace. This is important, because when memory is being tested, it often fails us. Having a written record of experiences will help ensure that all acts of retaliation are addressed.
An employee needs to prove that, if the workers’ comp claim weren’t filed, the discharge would not have occurred when it did. If you feel you were retaliated against in the workplace, call us as soon as possible.