Employer Retaliation

Can injured workers be fired for claiming workers' compensation benefits in Alabama?

Employers are not allowed to fire an injured worker in Alabama solely for making a claim for workers' compensation benefits. It would undermine the purpose and intent of the law if employers could merely fire an injured worker for making a claim.

The relevant section of the law is Ala. Code § 25-5-11.1 which reads as follows: 

Employee not to be terminated solely for action to recover benefits nor for filing notice of safety rule violation.

No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter

The problem for injured workers comes along with the word "solely", which opens the door for the employer to provide alternative reasons as a smoke screen to conceal why they chose to terminate an injured worker. Many employers are happy to walk through that door of opportunity and start to look for smoke screen reasons to terminate injured employees to conceal the true reason for the injured employee's termination. The burden then shifts to the injured employee to prove that the stated reasons are indeed just a smoke screen to cover the employer's true intentions - removal of an injured worker. 

It's even fair to visuallize the exchange as a tennis match. When we file a complaint, that is the serve across the net. The ball is now on the defendant's side. They return the ball back to our side of the court whent they provide their smoke screen alternative reasons for termination of employment. It is then our job to get the ball back across the net one final time - by proving that the stated reasons were not the true, and sole reason, for terminating the injured worker. 

To make the tennis analogy more true to reality, we'd have to include a net that gets a lot higher when it's our turn to hit the ball over. If we were playing cards, we'd say the deck is stacked against the injured worker. The law reads extremely favorably for Alabama employers, and it is therefore very difficult to prove an employer retaliation claim under the Alabama Workers' Compensation Act. 

What if you are being forced to quit?

Employers in Alabama have read the workers compensation laws, and they know that they are exposing themselves to legal liability through wrongful termination of an injured worker. Instead of expressly terminating the injured worker, employers will try to circumvent the rules and force the injured worker to quit or resign. This is referred to as a "constructive termination."  Which means you were still terminated, it was just done in an indirect way. Signs of constructive termination include activity such as: 

  • Selective enforcement of rules: You boss might start to enforce company rules against you that aren't enfoced against other workers
  • Reduction in work hours: Your boss may technically keep you employed, but substantially reduce your working hours
  • Ridicule or harrassment: Your boss may directly, or indirectly allow other co-workers to harrass you for being injured or for filing a claim for benefits

The word "solely" provides employers in Alabama a wide open back door to withraw through to escape many charges of retaliation. They are for this reason difficult to succeed on from a plaintiff's perspective. There are often times legitimate reasons the employer can point to for a lawful termination, particularly if they are patient. 

Likewise, it is not uncommon for employers to request a voluntary resignation as part of a workers compensation settlement agreement. It is not the norm, but it is not uncommon either. 

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How are Retaliatory Discharge claims proven?

Ideally we come across smoking gun evidence such as an internal memo or email stating management's intention to terminate the injured worker; however, such is often not the case. Instead, wrongful termination lawyers will try to prove the retaliatory discharge with the totality of evidence that points to the notion that you were terminated unlawfully. Ways this can be proven are numerous, and may vary depending on the facts  of your case, but they can include things such as: 

  • Emails and internal correspondence 
  • Deposition testimony of your superiors 
  • Human Resources records of how similarly injured workers were treated in the past 

Retaliatory discharge claims are tried before a jury. Claims for Workers' Compensation benfefits are tried just before the judge, without a jury. 

What damages are available under a retaliatory discharge claim?

Special Damages:  

  • Lost past and future wages - proven with past employment records, both before and after your injury. We might also consult what is known as a "vocational expert", which is someone knowledgable in the general job market, and how permanent injuries can impact wages. 

General Damages: 

  • Pain and Suffering - proven through your direct testimony, and then supported with your medical records and the testimony of your doctors, other treating medical professionals, and any friends or family members who have personally observed the impact your injury has made on your quality of life. 
  • Emotional Distress / Mental Anguish - proven in similar fashion to pain and suffering. It's impossible to jump inside someone's head and experience what they experience, but, it is possible to observe the outward signals that they present. Emotional distress and mental anguish claims are taken much more seriously when the injury victim can point evidence such as attending mental health counseling or psycho-therapy.

Punitive Damages:

  • Employer retaliation claims are one of the times where Alaama law provides for punitive damages. The root word in "punitive" is the same root word found in "punish." This is not a coincidence, as punitive damages are designed to punish the offendor by awarding the damages to the victim. It would wholly undermine the efficacy of the Alabama Workers' Compensation Act if employers could merely terminate an injured worker. If there were not a suitable economic or financial deterrant, then employers would be tempted to terminate injured workers to prevent them from making workers' compensation claims. Therefore, puitive damages are required to punish the employer, and they need to be high enough to make it sting so that the employer doesn't continue its unlawful behavior. 

How long do Retaliator Discharge Lawsuits take? 

The average civil lawsuit takes 18-24 months to fully unfold. Each case is different, and depending on your facts, and how busy the courts are in your particular county, your case may move faster or slower than average. 

The Lawsuit

The Employer Retaliation lawsuit starts when we file a Complaint. It needs to be within two years of your termination. Here's a rough outline of the Employer Retaliation lawsuit process: 

  • Complaint: we start by filing a complaint in the appropriate court. Probably the county where you worked. 
  • Answer: The defendants then have 30 days to file their response, which is called and answer. They are answering our complaint. 
  • Discovery: Each side has to swap evidence, and answer written questions about the lawsuit. Each side gets 30 days to do that. 
    • Subpeonas: If additional evidence is available, and neither party has it (like medical records) then we have to issue subpoenas for the records. Those take at least 30 days to complete. 
    • Depositions: Once the document evidence is gathered and reviewed, we start to schedule depositions. It typically takes a month or two after all of the evidence is gather for both parties to prepare for depositions. We will speak with available witnesses and your supervisors. 
  • Mediation: At this point, many Emplioyer Retaliation lawsuits attempt a formal settlement procedure known as mediation. 
  • Informal negotiations: The lawyers for both sides continue to attempt to reach an agreement through email and phone conversations. 
  • Trial: if mediation and negotiation is unsuccessful we go to trial. Trials can last anywhere from 3 days to 3 weeks, depending on the complexity of your situation, such as how many defendants there are, and how many witnesses are required to testify. 

Settlement Mediations 

Mediation: Employer Retaliation claims often settle through either negotiations of the parties or through a process known as Mediation. Mediation is a formal settlement meeting. It is usually done in an office. I will be in one conference room with you, and the defense lawyer and his or her client will be in another conference room. A third party known as a Mediator goes back-and-forth between the two conference rooms and communicates offers from one party to another.

Mediators are a paid service. We split the cost with the defense, although many times we can get them to agree to pay for the mediator if a settlement is reached. Mediators are knowledgeable about the law, and can help to evaluate the strengths and weaknesses of both parties involved in the mediation.

  • We tell the Mediator why we think our case is strong and the defense's case is weak
  • The defense tells the Mediator why their case is strong and ours is weak.
  • The Mediator goes back-and-forth between the two parties and tries to help us reach an agreement through this method.

Mediation is voluntary, even if participation is mandatory. We cannot force a defendant to pay anymore money than they are willing to pay at mediation. That is what trial is for. Mediation is an attempt to reach a voluntary agreement. Each party has a degree of control: The defendant controls how much money they are willing to offer; the plaintiff controls the "Yes" or "No."

Negotiation: At any point in the process your workers comp claim can settle. If you claim cannot settle prior to filing a lawsuit, then you typicall don't get full settlement value unless we proceed at least through the point of your deposition, and often times further. On average that is somewhere around 18-24 months. But, everyone's claim is different, many take longer than 24 months, and there are ways to make it go faster than 18 months if things work in our favor. Your claim certainly does not have to be average. To tell you more about your particular claim, I would have to know more about your case. You are invited to call me: (205) 335-4190 or complete one of my contact forms and I will reach out if I think I can help you. 

Attorney Fees

Fees for Employer Retaliation lawsuits are handled on contingency fee basis. The rate is set on a case-by-case basis. The good news is that you don't have to pay me anything out-of-pocket. The only way you pay me is out of your recovery. 

Lawsuit Expenses

In a Contingency Fee situation, I usually will pay case expenses on the front-end on the condition that you agree to pay me back out of any recovery from your claim. Expenses commonly include:

  • Filing Fee: to file your claim into court
  • Records Fee: copy fees to gather your records
  • Depositions:
    • court reporter appearance fee
    • transcript fees
  • Vocational Experts: It is very common to require an expert to testify at your trial to help prove your case to the jury. In cases that require expert testimony, the costs associated with hiring and retaining experts can reach $10,000 to $20,000. Such experts may be required to testify to the total amount of future wages you may have lost as a result of your employers unlawful actions. 

I try not to incur fees on your behalf unless they are necessary, but, you can see how Employer Retaliation claims that go to trial can incur tens of thousands of dollars in fees.

If you claim is denied, and we lose in court, then you do not owe me the expense money I spent on your claim. There is a certain amount of risk on my end involved in taking claims on a contingency fee structure, but, most of my clients are hurt and cannot work. They are in the worst position they could be in to hire a lawyer. Once I'm on your team, and standing in your corner, we either win together or we lose together.

Searching for a Workers Compensation Retaliation lawyer in Birmingham? 

Contact my firm today to discuss your case and to begin the process of pursuing the money damages that you need in your case. 

Additional Reading

Recent Alabama Decisions Related to this Subject

Free Initial Strategy Session

All Initial Strategy Sessions are Free. If you would like to discuss your options, you are invited to fill out one of the Contact Forms. I will attempt to contact you if I think I can help you.

During your Initial Strategy Session, I will asist you in creating a strategy on how to best pursue your claim, whether it be the result of a Car Accident Claim, 18 Wheeler Injury, or, Alabama Workers' Compensation Claim. At your Initial Strategy Session, you will receive the following:

  • First - I will listen to your story. You will have a chance to tell everything to someone who wants to hear what happened to you.
  • Based on the information that you provide, I will give you my best advice on both what claims you have, and the next steps you should consider to proceed with your claim(s).
  • If your claim is something that I think I can help you with, I will explain the services that I can provide for you, and what the next steps are that we should take. We will start working immediately.
  • If your matter is something that I do not think I can help you with, then I will attempt to put you in contact with another lawyer that might be able to help you.
  • Either way, what should happen is we will put to rest some of the unkowns that you may be experiencing. We will start to shed some light on what you can expect, and how to best pursue the benefits you deserve.

Don't delay getting the recovery you deserve! Contact us today for your free Strategy Session!

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