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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.  

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