WORKERS' COMP: HOW TO DISCIPLINE OR TERMINATE CLAIMANTS WHILE MINIMIZING YOUR LEGAL RISKS PRESENTED BY: ADELE ABRAMS LAW OFFICE OF ADELE L. ABRAMS PC THURSDAY, MAY 2, 2013 1:30 P.M. TO 3:00 P.M. EASTERN 12:30 P.M. TO 2:00 P.M. CENTRAL 11:30 A.M. TO 1:00 P.M. MOUNTAIN 10:30 A.M. TO 12:00 P.M. PACIFIC WWW.BLR.COM OR WWW.HRHERO.COM FOR CD AND OTHER PURCHASING INFORMATION, CONTACT CUSTOMER SERVICE AT: 800-274-6774 OR E-MAIL: [email protected] © 2013 BLR ® AND HR HERO® —BUSINESS & LEGAL RESOURCES AND HR HERO. ALL RIGHTS RESERVED. THESE MATERIALS MAY NOT BE REPRODUCED IN PART OR IN WHOLE BY ANY PROCESS WITHOUT WRITTEN PERMISSION. THIS PROGRAM HAS BEEN APPROVED FOR 1.5 CREDIT HOURS TOWARD PHR AND SPHR RECERTIFICATION THROUGH THE HUMAN RESOURCE CERTIFICATION INSTITUTE (HRCI).THE PROGRAM ID NUMBER WILL BE EMAILED TO THE REGISTERED PARTICIPANT AT THE COMPLETION OF THE CONFERENCE. FOR MORE INFORMATION ABOUT CERTIFICATION OR RECERTIFICATION, PLEASE VISIT THE HRCI WEBSITE AT WWW.HRCI.ORG. Workers' Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks Presented by: Adele Abrams Law Office of Adele L. Abrams PC May 2, 2013 Overview Employees may be protected by multiple statutes from discrimination and/or retaliation on the basis of worker’s compensation claims, articulating safety claims or making complaints to the government Often, OSHA/MSHA whistleblower claims can involve individuals involved in past or current worker’s compensation actions, which triggers dual protection under state WC laws as well. OSHA has new directive (3/12/12) declaring it a “whistleblower” issue to have incentive or discipline programs that target workers who report injuries/illnesses. WC Claims The employer may lawfully terminate an employee with a pending workers’ comp claim if not retaliatory and based on misconduct unrelated to WC claim Some states recognize WC retaliation claims under public policy exception to “at will” status Most state workers’ compensation laws provide that it is unlawful for employer to discharge or otherwise discriminate/retaliate against worker for claiming worker’s comp or testifying at a comp hearing. Claimant bears ultimate burden of persuasion in retaliatory discharge claims. Relevant inquiry is whether ER’s proffered reasons for termination are credible or pretextual. WC Basic Concepts Before workers’ compensation, employee injury payments were at discretion of employer and, if litigation was brought, employee’s recovery could be barred or substantially reduced if employee was negligent (comparative or contributory negligence statutes) Employer could evade responsibility if injury in workplace caused by third party (e.g., a contractor) However, if case proceeded to trial, compensatory and punitive damages were possible … Worker’s comp (WC) is intended to be a “no fault” system on both sides WC claimant who settles DOES NOT waive right to pursue litigation under federal employment statutes: Title VII, ADA, FMLA, ADEA unless expressly agreed to (see Passaic Beth Israel Hospital v. Perez, 2008 WL 612308 (NJ App. Div. 2008) Virtually all states now required employers to carry WC insurance (ER size thresholds vary). Features of WC System Systems include shared objectives: Prompt Prompt payment of medical costs and regular replacement of lost wages (partial replacement) Reduced costs connected with tort litigation Incentives for employers to maintain safe workplaces Classification of awards: TP, TT, PP, PT Non-employees may be covered under company’s WC policy under “statutory employer” and “borrowed employee” doctrines. Features of WC System Injuries and illnesses must occur in the course of, and arising out of, employment. May include preexisting conditions—“take the employee as you find him” Occupational illness (e.g., silicosis, cancer) and ergonomic conditions (carpal tunnel, MSDs, soft tissue injuries) are on the rise in terms of accepted claims … even injuries under corporate “wellness programs” may be covered! Exclusions: intentional employee wrongdoing, horseplay, aggressors in workplace violence, drug/alcohol impairment, before/after work begins Caution: if company denies WC claim successfully and terminates worker, employee may try to seek tort damages or sue under different theory (Title VII, ADA, FMLA, ADEA etc.) WC Termination Claims Generally, employee has the burden to convince a judge or jury that it was more likely than not that he/she was wrongfully terminated because of WC claims Employee does not have to prove that the workers' compensation claim is the sole reason for the discharge but must show causal relationship between protected activity and adverse action Basic Test: Whether the employer's action is rooted substantially or significantly in the employee’s exercise of rights under workers’ compensation laws Temporal proximity is considered in assigning strength of correlation of protected act to the adverse or disparate treatment Although employer may counter by showing a legitimate, nonretaliatory reason for action, jurors can infer that retaliation was the real reason and find employer’s explanation is pretextual Interface of WC, ADA, FMLA Employers need to be aware of relationships between workers’ compensation laws, the Americans With Disabilities Act, and the Family and Medical Leave Act (and state analogues) May be overlapping benefits and coverage, and potential for litigation for discrimination, retaliation claims. The interface between state workers’ compensation programs and employment laws such as the Americans with Disabilities Act/Rehabilitation Act and the Family and Medical Leave Act has been recognized as the “treacherous triangle” of HR law. Main distinctions are duration and type of injury/illness/disability, whether work-related, and what defenses are available. WC, ADA & FMLA A WC claimant generally has a right to his job unless there is medical evidence to prove he can no longer perform it (but can be terminated consistent with disciplinary policies, layoffs, seniority systems etc.) The Americans with Disabilities Act (ADA) protects qualified applicants and employees with a disability who are able to perform the essential functions of their job with or without a (reasonable) accommodation The Family Medical Leave Act (FMLA) protects those who have taken 12 weeks or less time off because of their own serious health condition (in-patient hospital treatment, or under continuing care of health care professional for 3+ days). Comparison of Statutes ADA FMLA Workers’ Compensation No eligibility requirements other than being qualified person with disability or an individual “regarded as” disabled - 50 or more employees at worksite or within 75 miles - Employee employed a total of 12 months (need not be consecutive), with at least 1,250 hours of service in 12 months before leave No eligibility requirements under than work-related injury or illness (definition of “workrelatedness varies according to state law) Leave may be required as reasonable accommodation for the disability. Leave may have to be paid Leave required up to 12 weeks but may be unpaid. State laws may offer more liberal benefits Only the maximum provided under the most generous applicable law Leave may be required if employee is unable to work. Worker who is injured gets percentage of normal wages as workers’ compensation benefit 15 or more employees 50 or more employees Minimum number of employees varies from 1-5 (state law) What is “Adverse Action”? Refusal to hire, demotion, termination Last chance agreements, PIP, suspension Negative performance reviews Transfer to less desirable job or location Reduction in hours, pay, or opportunities for overtime Bad references for former employee who was WC claimant Elimination of professional development opportunities or other benefits (company car, cell phone, etc.) Hostile acts, ostracism, reprimands, animus “For Cause” Discipline The employer can proceed with disciplining an WC claimant if it can show good cause: "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power." Pugh v. See’s Candies, Inc. (1981) 116 Cal. App. 3rd 311, 330, 171 Cal. Rptr. 917 Elements of Good Cause Consider the business judgment of the employer, or the fairness to the employee of the decision to discharge, while giving substantial weight to managerial discretion. Balance business efficiency and profitability against the employee's maintaining his or her job. It is critical that ER followsprogressive discipline system precisely (avoiding harsher discipline or “skipping steps” for WC claimants only). Legitimate Discipline Triggers Failing drug/alcohol test (zero tolerance is OK as long as no disparate treatment) Inadequate job performance Tardiness and/or absenteeism (watch out for FMLA) Insubordination and/or disruptive behavior Sexual and/or other harassment of fellow employees, customers, others Health and safety violations (watch out for OSHA whistleblower issues) Destruction of company or another employee’s property Dishonesty or abuse of company policies Misuse of time Other illegal actions (theft, workplace violence etc.) Retaliation Issues There can be no retaliation against employees for exercising rights under ADA/Rehabilitation Act, the FMLA or under state or federal workers’ compensation laws The statutory provisions of the ADA and FMLA specifically prohibit reprisal and any such retaliation can provide a separate count in litigation, in addition to any underlying claim If employer has followed AND documented normal progressive disciplinary steps, and not singled out disabled or injured worker in disparate manner, this can rebut prima facie case Complicated? You Bet! Violations may subject an employer to prosecution for a single offense by multiple agencies State Workers’ Compensation Commission (WC) Equal Employment Opportunity Commission (ADA) U.S. Department of Labor’s Employment Standards Administration (FMLA) and municipal government agencies may also be involved (e.g., if employer did not carry mandatory WC insurance or misclassified employee as contractor)! State There’s more! Discriminatory action against an employer for safety and health related activity may also lead to legal action under common law doctrines of wrongful discharge, and retaliation against WC claimants can be an additional count in ADA/FMLA litigation. Although the OSH Act creates an administrative procedure to investigate employee discrimination complaints, some Courts have held that this procedure is not the sole remedy available to employees. See Kilpatrick v. Delaware County S.P.C.A., 632 F. Supp. 542 (E.D. Pa. 1986); Sorge v. Wright's Knitwear Corporation, 832 F. Supp. 118 (E.D. Pa. 1993). This is because there is no “private right of action” under the OSH Act and OSHA’s failure to prosecute was viewed as not waiving worker’s other tort rights under common law. Other courts, have held that there is no private cause of action under federal law arising from a private employer's retaliatory discharge of an employee who has filed a complaint or instituted a proceeding under or related to the OSH Act. See George v. Aztec Rental Center, Inc., 763 F.2d 184 (5th Cir. 1985). Termination – Exit Interviews Pre-termination interview of employee with a signed statement may be wise (remember, cannot force signature and there may be ADEA issues) If new factual allegations are raised, the employer should consider investigating them No attempt should be made to dissuade or disqualify the employee from company benefits or unemployment insurance except where extreme circumstances Continuation of health benefits/COBRA rights should be confirmed in writing Make sure all wages have been paid including commissions, as well as accrued unused vacation to avoid FLSA and state wage law claims Confirm policy regarding references - a neutral letter or identified reference contact can help in avoiding misstatements by supervisors to prospective employer. Defense Exhibits – Wrongful Termination Claims Employee handbook (progressive discipline system enforced) Performance evaluations Letters of reprimand or other written warnings Affidavits or statements from supervisors or coworkers concerning conduct that is basis for discipline or termination Previous disciplinary records against other workers who do not fall within protected classification Employer’s written anti-retaliation policy NOTE: Anti-retaliation policy should have complaint mechanism to limit possibility of retaliation by direct supervisor Documentation of in-house investigation of any retaliation complaints Solutions … Train management and other employees with respect to workers’ compensation procedures, rights and responsibilities Enforce a policy preventing retaliation against workers who file claims (and create a solid paper trail if it is necessary to discipline a worker who has engaged in protected activity by filing a compensation claim) Ensure proper coordination of the various statutes that protect workers’ rights Conduct thorough accident investigations and controvert “bogus” claims Utilize vocational rehabilitation services and implement vigorous return-to-work programs Accommodate disabilities where feasible Implement return-to-work policies for WC claimants consistent with doctor’s recommendations/restrictions Have job descriptions to clarify what are worker’s “essential job functions” for purposes of light duty and also ADA analyses. Tips for HR and ESH Professionals Safety and human relations professionals should be familiar with all requirements. Consult counsel where appropriate when considering requests for accommodation, workers’ compensation, leave associated with medical treatment, and reinstatement following an absence. Exercise caution when developing a light or restricted duty job program for injured workers so as not to create “new job” for ADA purposes. Remember that injured workers who are angry at employer are most likely to file complaints with OSHA and MSHA (either for safety violations or discrimination actions under Sec.105(c) or 11(c)) Tips … Regardless of which statute a claim arises under, employers must be prepared to manage claims intelligently . . . No employer should attempt to hinder any investigation of a WC, safety, health, or environmental complaint or prevent management employees from talking with compliance officers or investigators. Managers must know the law AND know their rights. The correction of any unsafe or unhealthy condition (or environmental hazard) must be a priority at any workplace. All employee complaints must be investigated thoroughly – even the chronic complainer or current/former WC claimant may have a legitimate gripe! Tips … Any disciplinary action should be taken with at least one other management official present (a witness and credibility verifier). In union environment, worker will have Weingarten rights for any meetings that may result in issuance of disciplinary action! Employees cannot use WC laws to protect themselves from improper conduct (conduct for which they would have been disciplined in any event). A documented record of disciplinary action should be kept to demonstrate the legitimate (non-safety or WC-related) basis of employer’s decisions. Managers must be able to readily (and quickly) distinguish between protected and unprotected activity. Understand which laws apply to which workers (and which workers may be covered by multiple laws – e.g., WC statutes, ADA and OSH Act). Remember … Discipline can be imposed on “protected” worker for absences, poor performance, but same standards must be applied to all No departures from employer’s normal practices and policies If conduct was tolerated prior to WC claim, OSHA complaint, or FMLA/ADA action, subsequent discipline will seem retaliatory Conclusion Supervisory personnel should keep confidential those problems experienced with difficult employees on the job who are/have been WC claimants. Unnecessary discussion may serve as admissions against interest in later proceedings. Should a matter proceed to litigation, tactical decisions must be made quickly. The cost/benefit of litigating should be weighed at the outset. If mistakes were made, acknowledge these problems early with company counsel in order that appropriate decisions can be made concerning litigation and settlement. Although you cannot prevent discrimination claims from being filed, effective training and communication – as well as use of common sense – will held reduce the number of sustainable claims! Questions? Adele L. Abrams, Esq., CMSP 301-595-3520 [email protected] Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action. Speaker Biography ADELE ABRAMS ADELE ABRAMS, ESQ., CMSP, IS AN ATTORNEY AND SAFETY PROFESSIONAL WHO IS RECOGNIZED AS A NATIONAL EXPERT ON OCCUPATIONAL SAFETY AND HEALTH. SHE HEADS A NINEATTORNEY FIRM THAT REPRESENTS EMPLOYERS AND CONTRACTORS NATIONWIDE IN OSHA AND MSHA LITIGATION, AND PROVIDES SAFETY AND HEALTH TRAINING, AUDITING, AND CONSULTATION SERVICES. SHE IS ALSO ON THE ADJUNCT FACULTY OF CATHOLIC UNIVERSITY, WHERE SHE INSTRUCTS ON EMPLOYMENT AND LABOR LAW. SHE IS A CERTIFIED MINE SAFETY PROFESSIONAL, AND A DEPARTMENT OF LABOR–APPROVED TRAINER. SHE IS ALSO A PROFESSIONAL MEMBER OF THE AMERICAN SOCIETY OF SAFETY ENGINEERS, AND IS CO-AUTHOR OF SEVERAL SAFETY-RELATED TEXTBOOKS. SHE IS CHAIR OF THE NATIONAL SAFETY COUNCIL’S BUSINESS & INDUSTRY DIVISION COMMITTEE ON REGULATORY AND LEGAL AFFAIRS. SHE IS ADMITTED TO THE BARS OF MD, DC AND PA, AS WELL AS MULTIPLE FEDERAL COURTS INCLUDING THE US SUPREME COURT.
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