The Employer's Legal Resource: Worker's Comp Retaliation - Into the Abyss
If you've been reading the news at all, you know Oklahoma repealed its Workers Compensation Act (WCA) and, effective February 1, 2014, we are governed by the Administrative Workers' Compensation Act (AWCA). Now, most of the AWCA concerns traditional workers' compensation claims - how injured workers are treated. But, it also addresses retaliation. Let's recap.
In short, the WCA provided that a person could not be discharged for pursuing rights under the WCA. It provided that an employer could not discharge an employee during a period of temporary total disability (TTD) solely on the basis of absence from work. But it provided that after the employee's period of TTD had ended, it would not be a violation of the WCA if the employer did not retain the employee if he was determined to be physically unable to perform the assigned duties. The WCA permitted an employee to bring a lawsuit in court if he believed he had been discharged in violation of the rights set out in the WCA.
Of course, that law went away on January 31 of this year. So, what's changed? On its face, it may seem like a little, but that's where you may be lulled into a false sense of security. Here is the text of the new law:
A. An employer may not discriminate or retaliate against an employee when the employee has in good faith:
1. Filed a claim under this act;
2. Retained a lawyer for representation regarding a claim under this act;
3. Instituted or caused to be instituted any proceeding under the provisions of this act; or
4. Testified or is about to testify in any proceeding under the provisions of this act.
B. The Commission shall have exclusive jurisdiction to hear and decide claims based on subsection A of this section.
C. If the Commission determines that the defendant violated subsection A of this section, the Commission may award the employee back pay up to a maximum of One Hundred Thousand Dollars ($100,000.00). Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall reduce the back pay otherwise allowable.
D. The prevailing party shall be entitled to recover costs and a reasonable attorney fee.
E. No employer may discharge an employee during a period of temporary total disability for the sole reason of being absent from work or for the purpose of avoiding payment of temporary total disability benefits to the injured employee.
F. Notwithstanding any other provision of this section, an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted, is determined by a physician to be physically unable to perform his or her assigned duties, or whose position is no longer available.
G. This section shall not be construed as establishing an exception to the employment at will doctrine.
H. The remedies provided for in this section shall be exclusive with respect to any claim arising out of the conduct described in subsection A of this section.
"Discriminate or Retaliate"
The WCA specifically referenced "discharge." By the AWCA's use of the phrase "discriminate or retaliate," you can expect attorneys for employees to argue that many forms of adverse employment actions will be actionable - not just discharge. For example, let's say you have an employee who has filed a worker's comp claim and who has also committed a safety violation. You opt to suspend him for three days without pay for the safety violation. Under the new law, one might argue that you have "retaliated" against him by imposing the discipline because he filed his worker's comp claim.
From now on, consideration of a person's involvement in the worker's comp system should not be a factor only when considering discharge. It must be a consideration whenever any adverse employment action is levied.
Continuation of Group Health Insurance
In the WCA, there was specific language regarding the continuation of group health insurance - "No employer may..., except for nonpayment of premium, terminate any group health insurance of any employee because the employee has in good faith pursued rights under the WCA." That language was repealed effective January 31 and does not appear in the AWCA.
Despite this, remember (1) you may have obligations to continue group health insurance under the Family and Medical Leave Act and (2) if your cancellation of group health insurance were in retaliation for the employee's exercise of rights under the AWCA you would still be in violation of the AWCA. So, don't jump to the conclusion that you can cancel health insurance for an employee who is on worker's comp leave. Have a reasonable policy for dealing with this situation and treat similarly situated employees consistently. Continuing to cover employees for a month or two to ensure consistent treatment will be less expensive than defending the claim of retaliation.
Under the AWCA, it states that "an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted ... whose position is no longer available." Of course, you can imagine debates as to whether the position was no longer available for retaliatory reasons or for legitimate, business reasons. Proceed with caution when planning to use this defense.
Remedies / Damages
What can an employee get if an employer is found to have violated the AWCA? In general, an employee can recover back wages up to $100,000 plus the costs and reasonable attorneys' fees involved in pursuing the claim. An employee can no longer seek compensatory (emotional distress) or punitive damages.
If the employer wins, the employer shall be entitled to recover its costs and reasonable attorney's fees.
What Happens if an Employee Wants to File a Claim under the AWCA?
Ah, here is where we really go into the abyss. The AWCA states that the Workers' Compensation Commission (Commission) - NOT the Courts - have exclusive jurisdiction to hear and decide claims based upon section A described above. So, if an employee wants to claim that you discriminated or retaliated against him based upon his pursuit of his rights under the AWCA, he would file a claim with the Commission.
As of the writing of this article, the Commission has not established any rules, regulations, or forms to describe how to file or process such claims. Its focus to date has been on the handling of traditional workers' comp claims. So, we cannot tell you how a workers' comp retaliation claim will be handled by the Commission.
And then there is the outstanding question of Subsection E. What if the claim is that an employer terminated an employee during a period of TTD for the sole reason of being absent? Would that claim be brought before the Commission or the Court? Questions like this remain unanswered and will provide attorneys will a wide array of legal arguments to present to the Commission and the Courts in the coming months and years.
A Cautionary Note
Of course, you do not want to "discriminate or retaliate" against an employee for their exercise of rights under the AWCA, but two things are crystal clear under the new law:
Do not fire an employee during a period of temporary total disability for the sole reason of being absent from work
Do not fire an employee for the purpose of avoiding payment of temporary total disability benefits to the injured employee
We will keep you updated as developments unfold.
By Kristen L. Brightmire, firstname.lastname@example.org