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,...
Post a Comment
Read more

Breaking: Labor Secretary Rumored to Be Leaving Administration

A few hours ago, word leaked out that Labor Secretary Marty Walsh (“Walsh”) is in the midst of negotiations to head up the NHL Players Union and leave his position at the Labor Department. Walsh, who has served as the sole Labor Secretary under President Biden, has taken part in a labor renaissance of sorts as support for organized labor has increased during his term as Labor Secretary (although the number of workers that have joined a union over the past two years has not grown as mush as some expected.)  He has also overseen the ongoing negotiations with rail workers over a new contract, although that matter is still on shaky ground and playing out as we speak. As for who might step into the vacant Labor Secretary role, there are already rumblings that President Biden should nominate Deputy Labor Secretary Julie Su (a strong labor advocate) or even a progressive like Senator Bernie Sanders.  Until Walsh officially gives his notice, however, I would expect some/many potential...
Post a Comment
Read more

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations
Post a Comment
Read more