Workers’ Compensation Retaliation

Employment-at-Will. Texas is an “at-will” employment state, which generally means that employers and employees can terminate the employment relationship for a good reason, bad reason, or no reason, so long as the reason is not an “illegal” reason. This means that under most circumstances (absent an employment contract) you can quit your job at any time and for any reason without any fear of legal consequences. Likewise though, your employer can fire you for any reason, good or bad, without fear of legal consequences. Because the state of Texas does not like to meddle into how private employers handle their business, there are very few exceptions to the at-will employment doctrine.

An exception to this doctrine can be found in Chapter 451 of the Texas Labor Code. This statute makes it illegal for an employer to discriminate against an employee for filing a good faith workers’ compensation claim. If your employer terminated you for pursuing workers’ compensation benefits or for hiring an attorney to represent you in your workers’ compensation claim, you may be able to file a lawsuit under this exception to the at-will employment doctrine.

Workers’ Compensation Retaliation Claims. Texas Labor Code § 451.001 provides: a person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a claim for workers’ compensation benefits; or (4) testified or is about to testify in a proceeding for workers’ compensation benefits. The Legislature’s purpose for enacting section 451.001 was to protect people who are entitled to benefits under the workers’ compensation laws and to prevent employers from firing them for taking steps to collect benefits.

At trial, the employee must prove that but for the filing of the workers’ compensation claim the discharge would not have occurred when it did. The employee need not prove that retaliation was the sole cause of his or her termination. Rather, they must show that, “but for” the filing of the claim, the discharge would not have occurred when it did. Usually these cases must be proved by direct or circumstantial evidence.

Direct Evidence. As is true in most cases involving claims of discrimination or retaliation, one way in which a plaintiff can demonstrate a causal link between the employee’s actions and the employer’s motive is to offer direct evidence of a discriminatory or retaliatory motive on the part of the employer. Most often, that evidence comes in the form of negative comments or actions by the plaintiff’s supervisors or the persons involved in the decision to terminate or otherwise take adverse action against the plaintiff. Essentially, the plaintiff demonstrates by those comments or actions that the employer had hostility toward the injured plaintiff in particular or the workers’ compensation system in general.

Circumstantial Evidence. Texas courts have held that circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. See Continental Coffee Products. Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996).

Damages. The Texas Legislature has held that an employee who has been retaliated against for filing a Worker’s Compensation claim is entitled to “actual damages” which includes lost wages and benefits (past and future) as measured by the amount of money which the employee would have earned (or would be expected to earn in the future) if the employee had not been discharged or discriminated against in violation of the statute. In addition to being entitled to recover out-of-pocket and future monetary losses, a successful plaintiff in a Chapter 451 suit may be entitled to recover mental anguish damages upon proof that the plaintiff has experienced a high degree of mental pain and distress (i.e. more than mere disappointment, anger, resentment, embarrassment, etc.). Exemplary damages are also recoverable in a wrongful discharge suit under Chapter 451. See Azar Nut Company v. Caille, 734 S.W.2d 667, 669 (Tex. 1987).

Evidentiary Considerations. As in most employment law claims, these cases are “she said, he said” type cases and therefore documenting everything that occurs is very important. You are encouraged to keep a diary or journal of what is going on at work as well as keeping copies of all correspondence to and from your employer (written complaints to the HR department, emails to and from your supervisor and/or coworkers, and any other relevant documents). If you are in San Antonio, or within the state of Texas, you can also make audio recordings of conversations without the other parties’ consent or knowledge as long as you are in the same room as the recording device. See this resource for the legalities of audio recordings in Texas.

If you or a loved one has been subject to retaliation for filing a Workers’ Compensation claim please contact the attorneys of Carabin Shaw in San Antonio today. We offer free initial consultations and work on a contingent fee basis, which means that there is never a fee unless we successfully resolve your case. Our experienced San Antonio employment lawyers will know how to deal with Whistleblower claims so you don’t have to.

For immediate assistance and to set up a free consultation with one of our experienced lawyers, call us toll-free at 800-862-1260.

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