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Steven M. Lee, PC

Q:
Can I be denied a promotion at work if I put in a workers’ compensation claim?

A:

The simple answer is “No, you can’t lose a potential promotion due to a job injury claim.” In fact, it’s illegal to discriminate against workers who assert their legal rights under workers’ compensation. In other words, you can’t be fired nor be denied a promotion you have otherwise earned for using your workers’ compensation benefits, for acting as a whistleblower, or for having a prolonged recovery. Period.

The problem arises, however, when it comes time to prove that your employer indeed acted in retaliation.

Proving retaliation in response to a workers’ compensation claim can be tricky at best. In some cases, it may be easier and make more sense to look for a new job within the limits of your disability. However, the majority of retaliation claims are ripe for filing a lawsuit against your boss for employment discrimination, and in the long run, is the better course.

Texas Law Protects Workers

Employers cannot punish you for making a workers’ compensation claim. They also cannot retaliate against you because your disability has affected your ability to adequately perform your prior job’s duties, if you have previously reported the injury. It’s important to note that employers can demote or fire you if they have a just cause, as long as that cause doesn’t relate to the inability to work due to work restrictions your doctor put in place.

In addition to prohibiting employers from firing and punishing employees who have legitimate workers’ compensation claims, Texas law prohibits an employer from discriminating against employees who have hired an attorney to help them handle a workers’ comp claim.

What Constitutes Retaliation?

The anti-retaliation statute in Texas, Section 45.001, helps protect employees receiving workers’ compensation from unwarranted biases and punishments. However, determining whether or not an employer’s actions are retaliatory is not as easy as it may seem. Furthermore, the burden of proving retaliatory action falls to the employee. After all, depending on the nature of your injury, and how long your recovery takes, it may be within your employer’s rights to bring in a replacement or promote a more stable worker.

Although Texas is an at-will employment state, terminating an employee without a justifiable cause could be considered retaliation if the employee reported an injury or filed for workers’ compensation. Since federal law prohibits workplace discrimination, the U.S. Equal Employment Opportunity Commission defines workers’ compensation retaliation as any type of unwarranted punishment or harassment against an employee who has:

  • Made a claim in good faith for worker compensation.
  • Hired a lawyer to represent his claim.
  • Testified or is about to testify in an administrative proceeding regarding OSHA laws, workplace safety, or a claim for workers’ compensation benefits.
  • Filed a complaint, investigation, or lawsuit against the employer.
  • Spoken with a supervisor about personal employment discrimination or harassment.
  • Requested accommodations for a disability.
  • Questioned discriminatory treatment in comparison to how other employees are treated.
  • Made inquiries into the evidence that was used to discriminate against him or his promotion prospects.

Proving Your Case

If you believe that you were passed over for a promotion as a direct result of employer discrimination, you need to discuss your specific situation with a workers’ compensation attorney. Steve Lee has helped hundreds of employees in your exact predicament get the help and support they needed to file a lawsuit against their retaliatory employer. Allow him to give you the most appropriate advice for your individual needs. Call our office today for a FREE, no-obligation consultation. You won’t regret it.

Steven M. Lee
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