Skip to main content

Employee Files a Workers' Compensation Claim & Now You Want to Fire Them? Think Again (Texas)


It is not uncommon for an employee who is injured on the job to file a workers' compensation claim as a result of the injury.  In fact, employers should expect this will happen.  However, once the workers' compensation claim is filed, employers often take offense and seek to discharge the employee.

A note of caution though:  many states, such as Texas, dictate that an employer cannot discharge an employee who has filed a workers' compensation claim in good faith.  Tex. Labor Code Section 451.001.  This includes a prohibition on any retaliatory action by an employer if the employee even hires an attorney to represent the employer in the workers' compensation claim. 

Of course, employees have the burden to show a link between a discharge and the filing of the workers' compensation claim.  Employees can prove the link by either direct or circumstantial evidence.  However, there is a somewhat heightened standard to clear, as the employee must demonstrate that, but for the filing of the workers' compensation claim, the employee would not have been discharged.  Tex. Labor Code Section 451.002(b); Armendariz v. Redcats U.S.A., L.P., 390 S.W.3d 463 (Tex. App. -- El Paso 2012, no pet.).  If an employee cannot demonstrate that the discharge was solely a result of filing a claim, the employee must show the filing of the claim was at least a determining factor in the termination.  Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583 (5th Cir. 1995). 

Once a link is shown by the employee, the employer has the burden to show a legitimate reason behind the discharge.  Continental Coffee Prods. Co. v. Cazarez, 903 S.W.2d 70 (Tex. App. -- Houston [14th Dist.] 1995, pet. granted).  If an employer can rebut the employee's evidence, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive.   


So the moral of the story:  The next time employers want to discharge an employee who has fired a workers' compensation claim, it would be wise to think twice.  This is one of the easier issues for an employer to avoid...however, it is still a situation that keeps happening over and over again.  

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more