Facing Employer Retaliation After Filing For Workers’ Compensation

Posted by & filed under Workers' Comp.

If you are injured on the job, you have the right to file for workers’ compensation. However, some employers will see your injury as a reason to act against you – to cut your hours, benefits, or even terminate you entirely. While retaliation is unlawful in many instances, sometimes it is not illegal – merely unethical. It is important to understand which is which.

At-Will Employment Is Not Absolute

South Carolina is an at-will hiring state, meaning that unless otherwise stated when you are hired, an employer does not need specific evidence of misconduct in order to terminate you. This is standard practice in many states. However, at will employment does have caveats and exceptions – the most important, as one might imagine, being that an employer may not terminate or retaliate against someone based on an immutable characteristic or the exercise of protected activity.

The definition of “protected activity” is somewhat subjective, but there are certain actions that most certainly qualify, under both state and federal law. Filing for workers’ compensation is one of them. Workers’ compensation must be offered by your employer if the company is of a certain size – in fact, the law states that your employer and you will be presumed to have accepted the provisions of the South Carolina Workers’ Compensation Law unless you inform the state otherwise. If one is all but required to accept workers’ compensation, it is not a leap of logic to state that they have the right to claim it should it become necessary.

How To Seek Compensation

If you experience an adverse employment action (for example, having benefits cut, or being terminated), there is a method for seeking compensation spelled out in the law. Section 41-1-80 of the South Carolina Code holds expressly that should someone be subject to retaliatory discharge or mistreatment as a result of initiating workers’ compensation proceedings, their employer is liable as a matter of law for lost wages, as well as required to reinstate the employee at the same position, if the employee wishes. On the strength of this cause of action, the employer may be sued for compensation.

The idea of a law holding someone liable, as opposed to someone being found liable in court, can be a somewhat difficult concept to understand – most individuals tend to equate ‘liable’ with ‘guilty’ (that is, with willfully causing or not stopping an injury), when this analogy should not be made. Employers do have affirmative defenses if they can show they did not terminate an employee as a retaliatory action, but if it is found they did, they are liable under the law. If someone is liable for injuries to another person, it means they are legally responsible – for example, they may pay for medical bills or other necessary adjustments if the injury is a permanent one. It does not necessarily mean that they were complicit in willfully causing those injuries.

Get A Professional On Your Side

Being injured and out of work, especially if one or both of those states was through no fault of your own, can be cause for genuine despair. Seeking the advice of an experienced attorney may give you an idea of how to seek compensation for what you have been through. The compassionate and understanding North Charleston workers’ compensation attorneys at Callihan & Syracuse will listen to you and help guide you through the process of filing suit, hopefully with good results. Contact us today to schedule an appointment.