By Doug Berger
Many injured workers are afraid if they file a workers’ compensation claim they’ll be fired. You cannot be fired for making a workers’ compensation claim. Not legally, anyway. But it happens. A lot.
I’ve seen it happen over and over for more than 22 years in the workers' compensation field. I saw it when I was Deputy Commissioner at the North Carolina Industrial Commission where, for 10 years, I presided over 500 hearings for workers’ compensation disputes. (The North Carolina Industrial Commission (NCIC) is the impartial agency that administers and enforces workers' compensation laws.)
North Carolina worker’s compensation laws were designed to help protect injured workers. I should know. I helped write some of our state’s worker’s compensation laws as a four-term North Carolina senator.
Yet unfortunately, some employers do sometimes bend and break these laws. And it is not uncommon for an employer to fire an injured worker who makes a claim.
If you were my sister and you were injured on the job, I would arm wrestle you until you cried UNCLE and promised to contact a lawyer. (What can I say, I’m a rebel. Read my bio.) Experience tells me you’re frequently on the losing side of a worker’s comp claim without a lawyer. Being on the losing side can put you and your family in a downward spiral fast. I’ve seen these spirals and they’re ugly. Even more frustrating, many of these spirals could potentially have been prevented with the right legal guidance.
File a Complaint with the N.C. Department of Labor
If you believe you have been fired for making a workers' compensation claim, file a complaint with the North Carolina Department of Labor. You can’t obtain the legal right to sue your employer for wrongfully terminating you without filing this complaint first. And you must make sure you file the complaint so that the Department of Labor receives it within 180 days from the date you alleged your employer retaliated against you for making a workers’ compensation claim.
Click here for instructions on how to file a complaint with the N.C. Department of Labor.
Even if you do file a complaint, you may still have an uphill battle ahead of you. What our firm has experienced over our many years of representing injured workers is, the Department of Labor will most likely do a minimal investigation and then close your file. Of course, they will likely interview the employer to determine what they “claim” was the basis for your termination. As you might expect, employers typically will not admit they terminated you because you made a workers’ compensation claim. They know that is illegal. More than likely they will defend their termination by alleging misconduct or some such similar claim.
(Are you beginning to see why we suggest you contact a workers’ compensation lawyer?)
Document. Document. Document.
Another important thing to consider. Document anything and everything related to your termination grievance. Document all evidence related to your injury and your employment (including past reviews, especially if they are positive), emails, and anything that supports your case.
Your “Right to Sue”
While the North Carolina Department of Labor rarely takes an employer to court for wrongful termination, they may at least issue you a “right to sue” letter. You then have the legal right to take your employer directly to court to have a jury decide whether your employer retaliated against you because you filed a worker’s comp claim. If you prevail, you may win your job reinstatement and receive back lost wages.
This is another area of workers’ comp law where you would be prudent to hire a lawyer, as this reinstatement does not always bode well for the reinstated employee. We’ve seen some who have been “reinstated” only to be fired again for any number of reasons. Since North Carolina is an “at will” state, your employer can fire you for no reason (with some exceptions).
Being Fired Under Family Medical Leave Act (FMLA)
When can your employer legally fire you for being out of work? When you have remained out of work due to a workplace injury.
As long as workers who are out of work due to workplace injuries are treated the same as employees who are out of work for non-work related injuries, the North Carolina Department of Labor does not consider such a termination a violation of the law. Employers generally terminate employees who are unable to return to work after they exhaust their Family Medical Leave Act (FMLA) leave. In this particular instance, while you may not be able to keep your job, you may be entitled to receive workers’ compensation benefits until you are able to find a new job.
There are so many nuances and ways to interpret workers’ compensation law. And there are many good workers’ compensation lawyers in North Carolina. If you do decide to hire one, click here to download key questions to ask before making your choice. Here are just some of the things we believe set us apart.
What Makes the Law Offices of James Scott Farrin Different?
Our firm was named one of the “Best Law Firms” for workers’ compensation by U.S. News – Best Lawyers® for the greater Raleigh area1 in 2017. This recognition is based on client and peer reviews. We have strength in numbers and strength in knowledge.
- Many of our workers’ comp attorneys have been acknowledged by colleagues and peers. They are often asked to speak at seminars for other workers’ compensation attorneys. Others are accomplished authors of scholarly articles and two have received coveted awards for workers’ compensation, including Best Lawyers “Best Lawyers in America 3” for 2017. One was named NC Super Lawyers Magazine’s “Super Lawyer4” four times (2014, 2015, 2016, 2017) and Best Lawyers “Lawyer of the Year5” for Raleigh twice, (2015 and 2017).
- More than half our workers’ comp attorneys are N.C. Board Certified Specialists in Workers' Compensation law. This N.C. State Bar certification denotes a high level of proficiency in a particular practice area, and less than 4% of attorneys licensed in N.C. can make that claim2.
- A former North Carolina Industrial Commission Special Deputy Commissioner and Deputy Commissioner are on our staff.
- As stated earlier, I was a four-term North Carolina State Senator for eight years and helped write some of North Carolina’s workers’ compensation laws.
- Our attorneys are champions of the people. Many of them joined our side because they are advocates for those without a voice. And that is often the injured worker. Of our 13 workers’ comp attorneys, 12 are members of the North Carolina Advocates for Justice, an organization dedicated to improving the quality of legal representation in our state. Many are active members in their communities – from teaching at local colleges, to counseling the Hispanic/Latino community.
N.C. Workers’ Compensation Lawyers Offer FREE Case Evaluation
If your employer terminates you while you have a workers’ compensation claim, or even if you think you might be fired as a result, contact us. Even if you are fired while receiving treatment, stop to consider if your employer may be firing you because of your claim.
We have been in the workers’ comp industry a long time – always championing the individual worker over the employer or insurance company.
I won’t attempt to arm wrestle you and make you cry UNCLE, but I do urge you make a call to our firm if you suffered a work related injury. A phone call costs nothing, and our confidential case evaluations are free.
If you’ve been injured in a work accident contact us today or call 1-866-900-7078 to learn how a workers’ compensation lawyer from the Law Offices of James Scott Farrin could potentially benefit you.
1 Visit www.bestlawfirms.com for more information about criteria for inclusion
2 Figures from the N.C. State Bar as of December 2016
3,5 For more information regarding the standards for inclusion, visit www.bestlawyers.com
4 For more information regarding the standards for inclusion, visit www.superlawyers.com