Wrongful Termination to Avoid Paying Workers Compensation?
The majority of workers in California are voluntary “at will” employees, meaning that employers have the right to fire or demote an employee for any legal reason without having to provide “just cause” for the action. However, the term “wrongful termination” means that an employer has fired or laid off an employee for illegal reasons. One illegal reason includes firing to avoid paying workers’ compensation. (Another illegal reason is firing in retaliation for seeking workers’ compensation.)
Thomas says he was fired after getting injured - he first had an accident at home and another related injury on the job. “Initially I broke a bone in my left foot and at the same time sprained my right foot at home,” he says. “I took three days off work. About a month later, a co-worker accidentally pushed a dolly toward me as I was unloading a truck. I dodged the dolly and re-injured my sprained right foot.”
As per store policy (Thomas is in sales for a major electronics chain), he wrote an incident report and included the names of his co-worker and the truck driver, both of whom witnessed the incident. Thomas didn’t see the need to get medical attention so he left work and went home. But the next day, he got a call from HR, instructing him to see their doctor.
“Just as I thought, the doctor diagnosed it as a re-sprain, and prescribed pain killers, anti-inflammatory meds and ice packs,” Thomas explains. “He wanted to put a splint on it but I already had an appointment with my primary doctor. He then left the examining room and conferred with HR, came back and said he would wait and see what my doctor was going to do.
“The Workers Compensation claims adjustor called me the next day. She had a report from their doctor that said nothing was wrong with me. How could that be? He wanted to put a splint on my foot and put me on pain meds. Do you think he would give me meds if I wasn’t injured? He didn’t tell her that. I decided that next time I see him I will record his discussion.
“In the meantime, I saw my primary doctor. He examined both my feet and was concerned about me standing - I was on crutches at the time. He took me off the anti-inflammatory meds so I was just on Tylenol 3s. I had a follow-up with the company doctor the following week, and that is when I recorded him. Of course he didn’t know that I was recording his conversation with me because I knew he was lying. I asked him to recount everything he previously told me. I told him that my doctor said I needed at least two weeks off work to heal. He agreed, and I have that on record. “It will be difficult for you to stand on the sprained foot and it will put pressure on your broken foot,” he said and left the examining room again to call HR.
“Then his nurse gave me discharge papers that said I can go back to work. In other words, he contradicted himself. Obviously, he works for the company and not for the employee’s benefit. I went back to work that same day. Strangely, HR called and told me to go home because I was on medical leave (or limited duty) according to my primary doctor.
“HR called me at home again, a few days later. They had my W2 forms and wanted to check my mailing address. To my shock and surprise, I received the forms, my last check and a termination letter, saying I was terminated due to being absent all the time.
“The letter says I was out of work due to this injury and therefore do not qualify for leave of absence. ‘Due to your repeated absence and inability to complete essential functions of the job, we are left with no choice but to terminate your position as sales associate,’ it said.
“My question is that I had been working almost 30 days without anyone complaining, with no reduced hours, no special concessions. I did all the necessary functions of the job up until the negligent incident with my co-worker. They are trying to avoid being liable for me getting hurt on the job. That is why they tried to get their doctor to say I was OK.
“I believe I was terminated so that they could avoid paying Workers Compensation. The incident is recorded on their security camera. They cover every area. They know I was justified if I went forward with a Workers Compensation claim.”
Thomas has been in contact with a California labor law attorney who says that he should file a claim right away. Employees should report work-related injuries and illnesses to their employers immediately, because there may be time limits for filing a workers compensation claim. And if they anticipate any problems with their employer, seek help from an attorney sooner than later.