Workers’ Compensation Retaliation

In certain cases, The Porter Law Firm, P.C. will represent employees who are victims of violations of workplace rules. One rule that protects employees is the right to file or initiate a workers’ compensation claim after being hurt on the job. It is illegal for an employer to retaliate against an injured worker by firing him. The Porter Law Firm, P.C. recently tried this type of case and won a significant jury verdict for an injured employee who was fired after he had reported his injuries to his employer and filed a workers’ compensation claim. Below is a more detailed summary of what workers’ compensation retaliation is under Texas Law. If you feel that you have been illegally fired for filing a workers’ compensation claim or for reporting an on-the-job injury, then please contact The Porter Law Firm for a free initial consultation.

The Texas Labor Code prohibits an employer from firing an employee in retaliation for (1) filing a workers’ compensation claim in good faith; (2) hiring a lawyer to represent the employee in a claim; (3) instituting or causing to be instituted in good faith a workers’ compensation proceeding; or (4) testifying or is about to testify in a workers’ compensation proceeding. Importantly, an employee does not have to actually file a workers’ compensation claim to invoke the statute’s protections. Merely informing an employer of an  injury is sufficient to “institute” a compensation proceeding under the statute.

To prevail on a § 451 claim an employee need not show he was fired solely because of the protected activity. Rather, he must show that “but for” the filing of the claim, the discharge would not have occurred when it did. In other words, the filing of the workers’ compensation claim must be a reason for the employer’s adverse employment action, but not necessarily the reason

As with most employment-related lawsuits, direct evidence is rarely available to prove a workers’ compensation retaliation claim. Thus, circumstantial evidence is most commonly used to support the claim. The Texas Supreme Court has determined that circumstantial evidence sufficient to establish a causal connection between an adverse employment action and the protected activity includes:

• knowledge of the compensation claim by those making the decision;
• expression of a negative attitude towards the employee’s injured condition;
• failure to adhere to established company policies;
• discriminatory treatment in comparison to similarly situated employees; and
• evidence that the stated reason for the discharge was false.

In apparent recognition of the fact that most decision makers will know that an employee has filed a workers’ compensation claim, Texas courts have held that mere knowledge of a workers’ compensation, standing alone, does not establish a causal link, but is only one factor to be considered in the light of the record as a whole.

Little or no lapse in time between the plaintiff’s compensation claim and the employer’s adverse employment action is also circumstantial evidence of a retaliatory motive. This evidence is relevant for determining whether a causal link exists, both in examining whether the employee established a prima facie case and the ultimate issue of whether the employee proved a retaliatory motive for the adverse employment action.

With respect to similarly situated employees, the Texas Supreme Court has defined what that means. “Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.”

Employers will often attempt to escape liability for retaliation by claiming that the final decision maker was unaware of any illegal retaliatory motive. A causal link, however, is established when the final decision maker was merely the “cat’s paw” of those who were acting with a retaliatory motive. Statements and actions of ordinary employees are normally not imputable to the employer. Nevertheless, when the person conducting the final review serves as the cat’s paw of those who were acting from retaliatory motives, the causal link between the protected activity and adverse employment action remains intact. The ultimate question, therefore, is whether the employee can demonstrate that others had influence or leverage over the official decision maker.

Once the employee establishes the causal link, the burden then shifts to the employer to show that the employee was discharged for a legitimate reason. Thereafter, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. The employee must present evidence that the employer’s asserted reason for the discharge or other adverse employment action was pretextual or challenge the employer’s summary judgment evidence as failing to prove as a matter of law that the reason given was a legitimate, nondiscriminatory reason.