Employee can't be fired for exercising workers' comp rights

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Rebecca Tatlow is a partner with the law firm Evans & Dixon LLC, which specializes in the defense of workers' compensation and has offices in Springfield, St. Louis and Kansas City.|ret||ret||tab|

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As a defense attorney specializing in workers' compensation, one of the most frequent telephone calls I receive from my clients goes something like this: "John Doe has just been released to return to work after his injury. I don't want to bring him back to work. He's already had three workers' compensation claims, and if I bring him back he'll just have another one. Can I fire him?"|ret||ret||tab|

The short answer: Yes. But (and there's always a "but") you, as the employer, need to be aware of a few things. |ret||ret||tab|

In Missouri, there's a law called "retaliatory discharge," which states that an employee can't be fired because he exercises his workers' compensation rights. This is the law:|ret||ret||tab|

"No employer or agent shall discharge or in any way discriminate against any employee for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against shall have a civil action for damages against his employer." RSMo. 287.780.|ret||ret||tab|

Any employees who feel they were discriminated against because they had a work injury can sue their employer in civil court for damages. |ret||ret||tab|

They must show that they were an employee, that they exercised their rights, that they were discriminated against and that the sole reason for the discrimination was that the employee exercised his or her rights. |ret||ret||tab|

An "exercise of rights" isn't just the filing of a formal claim. When an employee reports an injury, misses time from work or seeks treatment, that burden is met. If the employee goes to his or her own doctor, for example, then the protection of the statute is triggered. |ret||ret||tab|

This isn't usually too difficult to determine.|ret||ret||tab|

Whether discrimination occurred is a bit more complicated. Usually, the employee has been terminated. That, however, is not the only way to show discrimination. If an employee is denied a pay raise, denied a promotion or assigned to a less desirable job, the courts will probably find that discrimination occurred. |ret||ret||tab|

In one case, a car salesman injured his knee at work. In the four months that passed before he was terminated, the dealership took back his demo car and replaced it with a 15-year-old car. |ret||ret||tab|

The salesman was told he didn't deserve anything better, and that this was a punishment for getting hurt on the job. Management also referred to the salesman daily as "Mr. Workers' Compensation" and "Million-Dollar Man." |ret||ret||tab|

Even though he was ultimately terminated, the court held that the actions of the dealership prior to the termination would have been sufficient to establish discrimination. Kummer v. Royal Gate Dodge Inc., 983 S.W.2d 568. |ret||ret||tab|

This is important because it establishes that an employer cannot "encourage" an employee to quit by the delicate measures described above. |ret||ret||tab|

If an employee can prove sufficient harassment at work, he can probably prove retaliatory discharge even if he actually resigns rather than gets fired.|ret||ret||tab|

Now comes the good news for employers. The employee must prove that the only reason for the discrimination was the exercise of their rights.|ret||ret||tab|

You might think the employee could never prove such a thing, but it happens. The evidence is usually in the form of comments by a supervisor to the employee that they shouldn't have filed a claim, or comments and notes in the personnel file that the employee is being terminated because of their workers' compensation claim. The evidence doesn't have to be that black-and-white, though. |ret||ret||tab|

Juries can rely on indirect proof as well, according to Reed v. Sale Memorial Hospital and Clinic, 698 S.W. 2d 931 (Mo App 1985).|ret||ret||tab|

In Crabtree v. Bugby, 967 S.W.2d 66 (Mo. Banc. 1998), the Missouri Supreme Court found the following evidence enough: the plaintiff received less pay and a lower position when she returned to work, she'd had no disciplinary reports before she was injured but received four such report in the nine days after she returned to work, and the reports were for infractions she actually didn't commit. |ret||ret||tab|

The court found this was enough to prove the employer discriminated against the employee solely because of her injury and exercise of rights. |ret||ret||tab|

In Ralph v. Lewis Brothers Bakeries, 979 S.W. 2d 509 (Mo. App. 1998), an employee was blamed for violating a rule that had never been enforced before, the employer wouldn't let the employee return to work even with a doctor's release, the employee was fired for something that was not typically a firing offense, and the employer didn't invoke the rule until after the employee settled the compensation claim. The court said those facts were enough to show that the employer was treating the employee that way solely because of the workers' compensation claim.|ret||ret||tab|

The employee has to have some evidence such as that described. He or she cannot simply show that tha claim was filed and he or she was later filed. Additionally, the employer does not have to keep an employee on if he is unwilling or even unable to do his job. |ret||ret||tab|

The employer can replace the employee if needed when an employee is off work. The employer does not have to keep a job open for an indefinite period of time for an injured worker. |ret||ret||tab|

The Americans with Disabilities Act requires certain employers to make "reasonable accommodation" for an employee, but the employer does not have to create an entirely new position if the employee cannot do his old job. |ret||ret||tab|

There are other statutes that give an employee the right to sue the employer, such as 19 U.S.C.A. Section 651, which says an employee can't be fired for reporting workplace safety violations to Occupational Safety and Health Administration. |ret||ret||tab|

In summary, although Missouri is an "at will" employment state, meaning an employee can be terminated at any time, there are issues employers need to watch out for. If you have any questions about a specific situation, I recommend calling an attorney. |ret||ret||tab|

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