Posts Tagged ‘retaliation’

Retaliation in Ohio: Fire in Haste, Repent at Leisure

Monday, June 13th, 2011

DeWayne Sutton worked for Tomco Machining in Dayton, Ohio. When he hurt his back while dismantling some equipment, he followed “best practices” and reported the injury immediately to company owner Jim Tomasiak. The boss pulled a “Trump” – deviating 180 degrees from “best practices” by firing Sutton immediately. No reason was given for the termination. As you would expect, Sutton was able to collect comp benefits (termination is no bar to eligibility), but could he also sue for wrongful termination? In other words, was the termination retaliation for reporting the claim?
Under the Ohio statute, employers are prohibited from firing, demoting or taking punitive action against an employee who files a workers comp claim. The question at issue is one of timing: the claim had been reported to the employer, but not yet filed with the insurer. So did Tomasiak violate the law by firing Sutton in the interval between the injury and the report to the insurer?
Begging to Differ
In a sharply divided opinion (4-3), the Supreme Court of Ohio found in Sutton’s favor, sending the case back to the lower court for reconsideration. Chief Justice Maureen O’Connor, writing for the majority, notes:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits.
The alternative interpretation – that the legislature intentionally left the gap – is at odds with the basic purpose of the anti-retaliation provision, which is “to enable employees to freely exercise their rights without fear of retribution from their employers.”

The court minority noted that Sutton was able to collect comp benefits – kind of “no harm, no foul.” Then, as Justice Terrence O’Donnell notes:

The majority has today expanded the public policy behind the provisions of (state law) to apply to those persons discharged before filing, instituting or pursuing a workers’ compensation claim. This allowance is a legislative prerogative, and in my view, we should follow the law as written and defer to the General Assembly, instead of stretching the extent of protection to fit situations not addressed by the statute.

This is familiar territory in the world of law: liberal interpretation (the majority) versus strict construction (the minority). One vote determined the outcome.
The Biggest Loser
Business owner Tomasiak comes away with a double whammy: he is liable for the comp claim through the experience rating process; having fired Sutton, he is unable to lower the cost of the claim by bringing Sutton back to work on modified duty. Then he faces a wrongful termination lawsuit, which he is probably going to lose. The timing of his action, along with the absence of any stated rationale, reak of retaliation.
Tomasiak’s impulsive response to Sutton’s injury violated Rule Number One for employers: if employees are not working out, fire them before they get hurt. Once they are injured, comp laws pretty much assume that any firing would be retaliation. For Tomasiak, just trying to run his machine shop in Dayton, Ohio, this is a tough – and expensive – lesson in best practices.

Health Wonk Review and other noteworthy news briefs

Thursday, March 18th, 2010

It’s Health Wonk review week, and Minna Jung serves up the March Madness of both the basketball court and the health care reform process in this week’s Health Wonk Review. Visit this week’s post at the Robert Wood Johnson Foundation’s blog The Users’ Guide to the Health Reform Galaxy.
Employer trends

  • Laura Petrecca of USA Today writes that employers are increasingly using technology to track and monitor employees. They do so for a variety of reasons, including monitoring to ensure productivity; to ensure that trade secrets are protected, and to ensure maintenance of professional and lawsuit-proof workplaces. Next month, the U.S. Supreme Court will hear a case that will explore privacy rights for employees when using employer-supplied devices. View some of the tech monitoring techniques that are being used.
  • NPR has been running a series on work-life balance and the increasing number of employers who are turning to flexible work schedules. You can read more about it at HR Web Cafe: Work-Life Balance and Flex Work.
  • Employee compensation costs – Private industry employers spent an average of $27.42 per hour worked for total employee compensation in December 2009 (PDF), according to a report issued last week by the Bureau of Labor Statistics. Wages and salaries accounted for 70.8% of these costs, while benefits accounted for 29.2%. Of the benefits, 8.2% were for the cost of legally mandated benefits.

CT crackdown – Connecticut employers take note – Attorney General Richard Blumenthal is planning a crackdown on workers that are misclassified as independent contractors. “Among the commission’s recommendations: increase the penalty from $300 per violation to $300 a day per violation, strengthen criminal sanctions against misclassification and jointly investigate misclassification complaints with other state agencies.”
Immigrant workers – In light of a recent Iowa Supreme Court ruling in a case involving a nonresident alien, Roberto Ceniceros posts about immigrant workers and benefit complexities. To stay current on other related issues, we refer you to Peter Rousmaniere’s Working Immigrants.
Toxic chemicalsThe Environment News Service writes that the Obama administration is giving mixed signals on right-to-know for toxic chemicals. On the one hand, to increase transparency, the EPA is providing free web access to the Toxic Substances Control Act Chemical Substance Inventory. This is the first time that employers will have access to thousands of industrial chemicals in the agency’s database. But in a move that seems at odds with the administration’s stated commitment to transparency, OSHA is proposing a reduction in the hazard warning information that chemical manufacturers must provide to workers, customers and other users. OSHA denies that it is weakening protections, and according to the article, claims that it is “merely trying to conform with global labeling rules and that manufacturers often disagree with the cancer hazard evaluations and other advisory information.”
Medical marijuana – We suspect we’ll be seeing more stories like this: Walmart fires Michigan man for using medical marijuana.The store fired 2008 “Associate of the Year” Joseph Casias when he failed a drug test. Casias has sinus cancer and a brain tumor and has an authorized medical marijuana card. He uses marijuana to control pain at night, but claims that he is never under the influence at work. (See our past posts on this topic: The current buzz on medical marijuana and the workplace and One toke over the line.)
Kemper runoff – Hard to believe that it’s been six years, but the Kemper runoff saga is nearing conclusion, according to Business Insurance. Some call this “one of the most successful runoffs in history,” but not all agree. Some are waiting for liquidation to see if they will fare better than the reported 25 cents to 50 cents on the dollar that claims are being settled at:

“A decision to wait for liquidation or settle beforehand should depend on a cost benefit analysis that includes evaluating whether state guaranty funds for workers compensation claims are likely to pay for the majority of a policyholder’s claims, several experts said.

Workers comp claims account for the largest portion of Kemper’s outstanding liabilities, totaling about $600 million, Ms. Veed said.

But some states have net-worth exclusions, which eliminate guaranty fund coverage for companies above certain net worth levels, which range from $10 million to $50 million depending on the state, several sources said.”

It’s Cavalcade of Risk week; that and other news briefs

Wednesday, October 7th, 2009

Feeling risky? Cavalcade of Risk #89 is posted at David Williams’ Health Business Blog. David is a master of the brief synopsis making it a very user-friendly compilation to browse.
Other news briefs
Fire Prevention – We’re right in the middle of Fire Prevention Week, a good time to communicate with your employees about fire safety at work as well as at home.
Economy and workers comp – At Comp Time, Roberto Ceniceros looks at the issue of how continuing job losses could hammer comp. He notes that, “Comp researchers have referred to recessions and the accompanying fear of job loss as having a ‘disciplining effect’ on workers, which leads to fewer claims filed. But that effect may only last so long.” And for another perspective on where we are headed, at Managed Care Matters, Joe Paduda reports from the AmComp conference, predicting that workers comp results are going to get worse – he points to medical costs as the culprit. And for more on this topic, see How the Great Recession is Changing the American Workplace, an article in Insurance Journal by Jay Reeves and Christopher Leonard. The authors look at effects that are likely to be long lasting.
Hawaii – In 2010, workers comp rates in Hawaii are expected to decline for the fifth consecutive year. Insurance Commissioner J.P. Schmidt says, “This is the largest workers’ compensation insurance rate decline of any state in the nation, except possibly those states that have enacted major statutory reforms.”
Traumatic brain injuries – Military medicine practiced in response to war injuries has always been a proving ground for medical advances and the Iraq war has been true to form. The L.A. Times features an excellent article on what we are learning from the battlefield about treating traumatic brain injuries. Many of the symptoms of PTSD can mimic the symptoms of traumatic brain injury, which can be better identified with new diagnostic imaging technologies.
Friction reducing devices – On the MEMIC Safety Blog, Lauren Caulfield talks about friction reducing devices aka “slider sheets” as a way to reduce injuries in healthcare settings when repositioning and turning patients.
Followup on UCLA lab deathChemJobber has some recent updates in the case of Sheri Sangi, a UCLA lab worker who died in a fire while working. We’ve talked about this case last June in Death in the lab: why aren’t university labs safer? and More on the UCLA lab death of Sheri Sangji
Legal matters – In the Wall Street Journal, Cari Tuna talks about the rise in employer retaliation claims, which were up by 23% in 2008, according to the Equal Employment Opportunity Commission. The article quotes one employment law attorney who puts retaliation as the No. 1 risk for employers today. Jeffrey Hirsch at Workplace Prof Blog says part of the reason is something akin to the principle it’s not the crime, it’s the cover up.
Every picture tells a story – We’ve previously pointed to the Naval Safety Center’s Photo of the Week. hair-raising photos of unsafe work practices. The Safety Duck Quacks also has a collection of photos of unsafe work situations.
Quick links
Mortality calculators
Lessons learned on e-mail – When it comes to messages, some traces can linger
So You Think Your E-Mail Is Really Deleted?
Owner-Operator truckers back texting while driving ban
World statistics updated in real time

Can You Terminate an Employee on Workers Comp?

Tuesday, June 2nd, 2009

Here’s a question that comes up frequently in our employer seminars: can you terminate an employee who is on workers comp? In general, it’s not a good idea. In many states there is a presumption that the termination is in retaliation for filing the comp claim. Nonetheless, the complete answer to the question is yes, you can, but you must do it very carefully.
The invaluable Risk and Insurance Magazine describes a case in Texas that illustrates this point nicely (Williams v AT & T, U.S.District Court, Southern Texas). Williams, a telecommunications tech, alleged that he sprained his leg stepping down from a ladder. He was a bit confused about the exact date, offering more than one in his descriptions of the incident. His claim was denied. One month later, he violated an important company policy and was suspended and then terminated. Even though his comp claim was denied, he alleged that he was terminated in retaliation for filing the claim. He sued AT & T for violating the Texas comp act.
Keep in mind, the employer must be able to demonstrate that the termination had nothing to do with the (denied) claim. In this situation, the burden of proof is definitely on the employer. AT & T presented evidence that Williams had a history of poor performance and excessive disciplinary actions for more than a year prior to the alleged injury. In other words, two key criteria of proof were met: the disciplinary problems preceeded the workers comp incident and they were thoroughly documented.
The court granted summary judgment to the employer. While falling under the protected class of employees who have filed comp claims, Williams could not establish that his termination was related to the comp claim. There were plenty of other reasons for the employer’s actions.
I often hear employers complain that they had been planning to terminate a marginal employee, but then the employee got hurt. In most cases, there is inadequate documentation of poor performance prior to the injury. These employers are stuck: any attempt to document performance issues after the injury will be viewed sceptically by the court. The termination will trigger retaliation claims.
Here is a quick tip to avoid this situation: fire marginal employees before they get hurt. Once employees are injured on the job, an employer’s options narrow significantly. Given that marginal employees are more likely to be injured – that’s part of what makes them marginal – prompt action to end their employment is an essential “best practice.”