Employees in North Carolina are generally considered “at will” employees. What this means is that your employer can fire you at any time for any reason – unless that reason is against the law.
Some employees are fired because they file a workers’ compensation claim. This is illegal.
Even so, what I have experienced is that many employers are crafty enough to come up with another explanation for why they are terminating an injured worker who coincidentally filed a workers’ comp claim. Unless you have a contract of employment, such as through a union, your employer can potentially terminate you even while you are out of work recovering from a work injury.
But if they fired you for filing a workers’ compensation claim, they won’t admit it. Based on my nearly 15 years litigating workers’ compensation cases, I have seen some employers make up all kinds of reasons why they had to fire an employee. One employer actually told an employee that he was being fired because he “took too long to heal.”
Find out how that employee turned this situation into an inspiring story after he contacted us for help.
Below, I’ll break down for you what your employer can and can’t do. After you’ve learned about your rights, feel free to contact us for a free case evaluation.
Can I Get Fired for Filing Workers’ Compensation?
Employer retaliation is strictly illegal. But that doesn’t mean it can’t happen to you.
I’ve worked with many, many clients over the years who got the clear impression that their employer was out to get them after they filed a workers’ comp claim. Most employees are at-will, which means they can be fired (or quit) for nearly any reason. Prohibited reasons would be things like retaliation or discrimination. But your employer could cite a different reason for your firing, such as a layoff following corporate restructuring.
Can an employer get away with this lie? As with everything, it comes down to what can be proven. If you think you are about to get fired in retaliation, it may be possible to pre-emptively gather evidence (like positive performance reviews). Generally speaking, evidence gathered beforehand may be more convincing than evidence you can access after being fired. A workers’ compensation attorney may be able to help leverage this evidence if you’re fired for filing your claim.
Can I Get Fired While on Workers’ Comp?
Short Answer: Yes, eventually, if the reason is not because you filed a claim.
Longer Answer: If you can’t return to your job after reaching maximum medical improvement, then you may be fired. You may also be fired during your recovery under the rules of the Family Medical Leave Act (FMLA). The FMLA gives employees a certain amount of time they can be out from work and still expect things to wait for them until their return (think: maternity leave). The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave. If you stay out longer than that allotted time, whether because of injury or because of some other reason, your employer will likely terminate you.
In this case, even though you have an open claim, you are being treated the same as employees who are out of work for non-injuries and non-work-related injuries. When employee treatment is consistent, the North Carolina Department of Labor does not consider such a termination a violation of the law.
You Can Still Get Workers’ Comp Checks If You Were Fired
Even after you are terminated, if you are receiving workers’ compensation, you will still be entitled to receive weekly wage loss checks from workers’ compensation until your doctor says you are able to return to work.
What If I Can Return to Work But I Have Restrictions?
While you are recovering from your injury and still under a doctor’s care, your employer must make reasonable efforts to accommodate you. An example of a reasonable accommodation might be a special chair or more frequent breaks. Your employer may also provide you with a “light duty” job as a less physically demanding alternative – though “light duty” alternatives are often unsatisfactory.
What Do I Do If I Was Fired While on Workers’ Comp?
If you believe that you have been terminated, suspended, or demoted solely because you filed a workers’ compensation claim, you may file a written complaint with the Commissioner of Labor under the Retaliatory Employment Discrimination Act (REDA). Your complaint must be filed within 180 days of the alleged violation.
You can’t obtain the legal right to sue your employer for wrongfully terminating you without filing this complaint first. Even if you do file a complaint, you may still have an uphill battle ahead of you. What I’ve experienced over many years of representing injured workers is that the Department of Labor will most likely do a minimal investigation and then close your file. Of course, they will likely interview the employer to determine what they claim was the basis for your termination. As you might expect, employers typically will not admit they terminated you because you made a workers’ compensation claim.
What is a “Right to Sue” Letter?
While the North Carolina Department of Labor rarely takes an employer to court for wrongful termination, they may at least issue you a “right to sue” letter. You then have the legal right to take your employer directly to court to have a jury decide whether your employer retaliated against you because you filed a worker’s comp claim. If you prevail, you may win your job reinstatement and receive back lost wages.
Can I File Workers’ Comp After Being Fired?
If the injury you suffered qualifies and happened at work, you may still be able to file after you’ve been fired. The main barrier is not that you’re no longer employed by the business. The main barrier is likely to be the amount of time that’s elapsed since you got hurt. A claim of workplace injury must be filed within two years of the injury date. However, the longer you wait, the more likely the employer will deny payment of your claim.
Know Your Rights!
Some employers know their way around the law and may be betting that you won’t put up a fight. If you believe you may have a claim, contact my firm at 1-866-900-7078 to see if one of our experienced workers’ compensation attorneys can help. Your case evaluation is completely free.