Workers’ compensation insurance is a benefit required by law in the state of Missouri for businesses with five or more employees or companies in the construction industry with one or more laborers. The insurance is to assist an employee injured on the job or exposed to an occupational disease while working.
However, a recent decision by the Missouri Supreme Court pertaining to retaliation for filing a workers’ compensation claim will immediately begin impacting area organizations.
Retaliation falls under discrimination law.
Employment discrimination occurs when an employer makes an adverse employment decision utilizing the fact an applicant or associate filed a workers’ compensation claim. Adverse employment decisions may encompass any term or condition of employment, such as hiring, firing, pay, promotions, layoff, training, job assignments or fringe benefits.
In addition, the job candidate or staff member may not be retaliated against for engaging in the legally protected activity of filing a workers’ compensation claim. As with discrimination, retaliation is also prohibited regarding any aspect of employment.
Rule changeIn April, the Missouri Supreme Court overruled a long established, single-causation criteria concerning workers’ compensation retaliation claims. In Templemire v. W&M Welding Inc., the court said a worker merely has to show that filing a workers’ compensation claim was a contributing reason, as opposed to the only motivation, for the corporation discriminating against him. Prior to the court ruling, the worker had to prove that filing a workers’ compensation claim was the exclusive cause leading to an adverse employment determination.
Now, for example, if an enterprise has five reasons for firing the worker, and only one of the reasons is due to the worker filing a workers’ compensation claim, then the worker’s discharge is considered illegal discrimination.
The court’s determination will make it considerably simpler for an applicant or team member to demonstrate workers’ compensation retaliation. Due to a high probably of suits, organizations should begin taking six action steps.
Taking stepsFirst, develop a strong, written anti-discrimination and retaliation policy with a clear internal complaint procedure. Properly conduct confidential investigations and ensure no retaliation occurs.
Second, create a job description for each position.
Include the essential function job duties, nonessential job duties, and physical and mental requirements.
Once prepared, keep job descriptions up to date.
Third, provide similar pay for jobs similar in skill, responsibility and working conditions. Document a legal rationale for starting salaries and raises based upon legitimate, job-related standards or business practices permitting differences in pay.
Fourth, document the nondiscriminatory reason for rejecting candidates at each stage of the hiring and promotion process. Do not ask any questions about workers’ compensation. It is hard to prove a workers’ compensation claim is not a hiring factor if discussed.
Fifth, apply consistent disciplinary practices. Utilize progressive discipline, render the same discipline for the same offenses and develop standardized forms. Document the facts regarding the inappropriate behavior, standards expected and consequences of noncompliance. Use a company witness.
Lastly, require regular management training of current, new and promoted supervisors. Provide information concerning the law, company human resource policies and procedures, and required paperwork and documentation.
Developing and adhering to sound human resource practices will greatly minimize exposure to workers’ compensation retaliation claims.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resources consulting. She can be reached at lynne@lynnehaggerman.com.
