What Evidence Should I Save If I Think I Was Fired Because of My Alabama Workers Compensation Claim?

What Evidence Should I Save If I Think I Was Fired Because of My Alabama Workers Compensation Claim?

If you believe you were fired because you reported a job injury or pursued workers’ compensation benefits, one of the most important things you can do is preserve the evidence while it still exists and while the events are fresh in your memory.

Alabama retaliatory discharge cases rarely come with a “smoking gun.”  Face it, most employers do not send an email saying “We are firing you because you filed a workers’ compensation claim.”  Instead, these cases are usually proven through circumstantial evidence—the timing of the termination, what supervisors said, whether company policies were followed, how other employees were treated, whether your performance evaluations suddenly changed, and whether the employer’s explanation for firing you is actually true.

The Alabama Supreme Court recognized the importance of these types of circumstantial evidence in Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002).

The problem is that some of the best evidence can disappear quickly after you lose your job.

So, what should you save?

1. Save Anything Showing Why You Were Fired

Start with the reason the employer gave you at the time of termination.  Preserve:

• your termination letter;
• disciplinary notices;
• write-ups;
• emails concerning the termination;
• text messages with supervisors or HR;
• separation paperwork; and
• any other document explaining why you were fired.

If the reason was given only verbally, write down as soon as possible exactly what you remember being told, who said it, when it was said, and who else was present.

Why does this matter?

Because an employer’s changing explanation for a termination can be evidence of pretext.

In Flint Construction Co. v. Hall, 904 So. 2d 236 (Ala. 2004), the employer’s explanation for the employee’s termination became an important part of the retaliatory discharge case. Evidence indicated that an explanation initially given for the termination was false, and different explanations appeared as the dispute progressed.

If your employer says one thing on the day you are fired and something different months later, you want evidence showing what was originally said.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case? explains why inconsistencies in an employer’s explanation can become important circumstantial evidence of retaliation.

2. Keep the Employee Handbook and Company Policies

If your employer says you were fired for violating a company policy, preserve the handbook and policies that applied while you were employed.  This is particularly important because policies can change.  Six months or a year later, the handbook available online may not be the same handbook that existed when you were terminated.

Important policies might include:

• attendance and absenteeism;
• call-in requirements;
• progressive discipline;
• leave;
• workplace injuries;
• light-duty or return-to-work procedures;
• safety rules; and
• termination procedures.

Under Aldridge, an employer’s failure to follow its established company policy can be circumstantial evidence supporting a retaliatory discharge claim.  In the retaliatory discharge case we tried in Bessemer, Alabama and obtained a $750,000.00 verdict, one of the employer’s changing reasons for our client’s termination was their testimony that the Point System used as a pretext to fire our client had been in effect for years prior to our client’s termination.  Evidence showed that the policy was changed after his job injury.  Changing policies is evidence of pretext.

The actual policy therefore matters—not simply what someone later says the policy required.

Recommended Reading: Can My Employer Fire Me for Violating a Company Policy After I File a Workers’ Compensation Claim? discusses why the existence of a legitimate company rule does not necessarily end the retaliatory discharge inquiry.

3. Preserve Your Performance Evaluations and Write-Ups

This can be extremely important.

Suppose you worked for an employer for eight years and consistently received satisfactory or excellent performance evaluations.  Then you suffer a job injury.  Shortly afterward, you suddenly begin receiving negative evaluations and disciplinary write-ups.

Does that automatically prove retaliation?  No, but it may be significant.

One of the factors identified by the Alabama Supreme Court in Aldridge is a sudden change in an employee’s work-performance evaluations following a workers’ compensation claim.

Preserve evaluations from before and after the injury whenever you lawfully have access to them.  The comparison may be more important than either document standing alone.

4. Save Attendance Records and Communications About Missing Work

Attendance disputes appear frequently in retaliatory discharge cases.  If the employer claims you were fired for excessive absences, a no-call/no-show, or failure to follow a call-in policy, preserve evidence showing what actually happened.  That may include:

• text messages telling your supervisor you would be absent;
• emails to HR;
• doctor’s excuses;
• appointment notices;
• work-status slips;
• phone records showing calls to the employer;
• messages from a nurse case manager;
• communications about workers’ compensation appointments; and
• the employer’s attendance records, if you lawfully possess them.

The details can matter.

There is a considerable difference between an employee who simply stops reporting to work and an injured employee whose supervisor knows the employee is missing work because the authorized treating physician has taken the employee off work.

Recommended Reading: Can My Employer Fire Me for Attendance Problems After a Workers’ Compensation Injury in Alabama? discusses why attendance cases often turn on much more than the number of days an employee missed.

5. Preserve Text Messages and Emails With Supervisors and HR

Modern retaliatory discharge cases can involve a tremendous amount of electronic evidence.

Do not assume that because a text message is currently on your phone, it will still be there two years from now.

Preserve communications concerning:

• your accident or injury;
• reporting the injury;
• medical treatment;
• workers’ compensation;
• doctor’s appointments;
• work restrictions;
• returning to work;
• light-duty assignments;
• absences;
• disciplinary action;
• pressure to settle your workers’ compensation claim; and
• your termination.

Sometimes what is important is not an explicit threat.  A supervisor complaining repeatedly about medical appointments, questioning why an employee “needs workers’ comp,” or expressing frustration with restrictions may become significant when considered with other evidence.

Another Aldridge factor is an employer’s expression of a negative attitude toward the employee’s injured condition.

A text message can be much harder to explain away later than someone’s recollection of a conversation.

6. Keep Your Medical Restrictions and Light-Duty Offers

If the dispute involves whether you could return to work, preserve the actual medical restrictions.

Do not rely upon memory.

There can be an enormous difference between “The employee refused to return to work” and “The employee was offered a job requiring duties that conflicted with the authorized physician’s restrictions.”

Preserve:

• work-status forms;
• lifting restrictions;
• standing and walking limitations;
• restrictions on climbing, bending, reaching, or driving;
• return-to-work releases;
• written light-duty offers; and
• descriptions of the actual job the employer expected you to perform.

If an employer says it offered suitable light-duty employment, we need to know what job was actually offered and whether that job fit the employee’s restrictions.

Recommended Reading: Can My Employer Fire Me for Refusing Light-Duty Work After an Alabama Workers’ Compensation Injury? discusses why the words “light duty” do not necessarily answer whether the offered work was actually suitable.

7. Write Down the Names of Employees Who Were Treated Differently

Suppose your employer says you were fired because you accumulated too many attendance points, but you know three coworkers who accumulated as many—or more—points and were not fired.

Write down their names and what you know.

You probably will not have access to their personnel files, and you should not improperly obtain confidential employment records, but identifying possible comparison employees can be very important.

Another Aldridge factor is discriminatory treatment compared with similarly situated employees.

During litigation, an attorney may be able to seek appropriate records through discovery and determine whether other employees who committed similar violations were treated differently.

Months or years later, however, you may no longer remember the names of the employees who seemed important immediately after your termination.

Write them down while you do.

8. Identify the People Who Heard What Happened

Witnesses matter.  Write down the names of people who:

• witnessed your injury;
• knew you reported the injury;
• heard supervisors discuss your workers’ compensation claim;
• heard negative comments about your injury or restrictions;
• witnessed disagreements concerning light duty;
• attended disciplinary meetings;
• were present when you were fired; or
• know how other employees were treated for similar conduct.

Do not assume you will remember everyone later.

Also write down what you believe each witness actually knows.

A list saying “John Smith” may mean very little two years later.  A note saying “John Smith was in the office when supervisor told me my doctor’s appointments were becoming a problem” is much more useful.

9. Preserve Your Unemployment Compensation Records

If you apply for unemployment compensation after being fired, preserve the entire file available to you.  That can include:

• your application;
• the employer’s response;
• notices and determinations;
• hearing notices;
• exhibits;
• the hearing decision;
• appeal documents; and
• correspondence concerning the claim.

This is particularly important because, under Alabama law, a determination made in an unemployment proceeding can sometimes have consequences in a later retaliatory discharge lawsuit.

Recommended Reading: Can an Unemployment Compensation Decision Hurt My Alabama Retaliatory Discharge Case? discusses decisions such as Caton v. City of Pelham and why an unemployment proceeding should not automatically be treated as unrelated to a potential retaliatory discharge claim.

10. Create a Timeline While You Still Remember What Happened

This may be one of the simplest—and most useful—things an injured employee can do.  Write down the important events in chronological order:

Date of injury → report of injury → medical treatment → workers’ compensation claim → work restrictions → return to work → comments by supervisors → disciplinary action → light-duty dispute → termination.

Include dates whenever possible.

Why?

Because retaliatory discharge cases often involve putting many small pieces of circumstantial evidence together.

For example, a termination three months after an injury may not mean much standing alone.  Consider this sequence:

• Employee reports a significant job injury.
• Supervisor complains about the workers’ compensation claim.
• Employee begins missing work for authorized medical appointments.
• Employee receives the first disciplinary write-up in eight years.
• Employer disregards its normal progressive-discipline policy.
• Other employees committing the same violation are not fired.
• Employee is terminated shortly afterward.

No single fact necessarily proves retaliatory discharge.  Together, however, the facts may tell a very different story.

Recommended Reading: How Important Is Timing in an Alabama Retaliatory Discharge Claim? explains why timing can be persuasive when combined with other evidence of retaliation.

Preserve Evidence—Don’t Create Evidence

There is an equally important warning.

Preserving evidence does not mean an employee should improperly take confidential company information or try to manufacture evidence for a lawsuit.

Do not:

• access company computer systems after your authorization has ended;
• secretly remove confidential personnel records;
• alter documents or text messages;
• impersonate someone to obtain information;
• manufacture conversations;
• deliberately provoke a supervisor in hopes of obtaining an incriminating response; or
• destroy evidence that may be unfavorable to you.

Preserve documents and communications that you lawfully possess.

Write down your honest recollection of events.

Keep legitimate records, but do not create a new problem while trying to preserve evidence of the original one.

Credibility can be extremely important in a retaliatory discharge case.

What Evidence Can an Attorney Obtain That You May Not Be Able to Get?

An injured employee should not assume that he or she must personally possess every piece of evidence necessary to prove the case.  Once litigation begins, the discovery process may allow an attorney to seek relevant evidence from the employer.

Depending upon the issues in the particular case, that might include:

• internal emails concerning the employee;
• communications among supervisors, HR, and management;
• appropriate disciplinary records concerning similarly situated employees;
• prior versions of company policies;
• attendance records;
• internal documents concerning the termination decision;
• evidence identifying who actually decided to fire the employee;
• evidence showing when the termination decision was made; and
• testimony from supervisors and other witnesses through depositions.

That last point can be especially important.  An employer may say an employee was terminated because of something that happened on Friday, but what if internal emails show management had already decided on Wednesday that the employee would be terminated?

The timing of the actual decision may cast the employer’s later explanation in a very different light.

Recommended reading: What is Discovery?

Do I Need a “Smoking Gun” to Prove Retaliatory Discharge?

No.

This is one of the most important lessons from Alabama retaliatory discharge law.  Employees are permitted to use circumstantial evidence because direct evidence of an employer’s true motivation is often unavailable.  The Alabama Supreme Court has recognized factors such as employer knowledge of the workers’ compensation claim, negative attitudes toward the employee’s injury, failure to follow company policies, different treatment of similarly situated employees, sudden changes in performance evaluations, and evidence that the stated reason for termination was false.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun provides a more detailed discussion of these factors.

The goal of preserving evidence is therefore not necessarily to find one document that proves the entire case.  It is to preserve the pieces that may eventually allow the entire picture to be seen.

The Bottom Line

If you believe you were fired because you pursued Alabama workers’ compensation benefits, begin preserving relevant evidence as soon as possible.

Keep the termination documents. Save texts and emails. Preserve the handbook that existed when you were fired. Keep your medical restrictions. Write down witness names. Preserve your unemployment records. And create a chronology while the events remain fresh.

Just as importantly, do not improperly obtain records or manufacture evidence.

A retaliatory discharge case is often built by comparing what the employer says happened with the documents, witnesses, policies, timing, and treatment of other employees.

Evidence that seems insignificant today may become extremely important once all of those pieces are put together.

If you suffered an Alabama job injury and were subsequently fired and have questions about whether your termination was related to your workers’ compensation claim, don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

Powell and Denny: We Work When You Can’t