When Should I Talk to an Alabama Retaliatory Discharge Lawyer? Warning Signs After a Workers’ Compensation Injury

When Should I Talk to an Alabama Retaliatory Discharge Lawyer? Warning Signs After a Workers’ Compensation Injury

Many injured workers have called our office to discuss their job injuries, and at some time they say something like “I’m afraid they’re going to fire me.”  When we ask what makes them thinks this, they tell us things like:

“Everything changed after I got hurt.”

“I never had attendance problems until I filed workers’ compensation.”

“They keep writing me up for things they never cared about before.”

“My supervisor is angry about my restrictions.”

“They offered me a job my doctor says I can’t do.”

“Human Resources says my FMLA has run out.”

“They want me to resign.”

Sometimes the employer has a legitimate reason for what is happening, but sometimes they do  not.

But an employee does not necessarily have to wait until the day he or she is fired to ask questions about Alabama’s retaliatory discharge law.  In fact, getting advice before making an important employment decision can sometimes be more valuable than waiting until after the decision has already been made.

Alabama Law Does Not Make an Injured Worker Immune From Being Fired

This is an important place to begin.

Alabama Code § 25-5-11.1 prohibits an employer from terminating an employee solely because the employee instituted or maintained an action to recover workers’ compensation benefits.

It does not prohibit every termination that occurs after a workplace injury.

An employer can still contend that an employee was terminated for a legitimate reason such as attendance, violation of company policy, insubordination, dishonesty, poor performance, inability to perform the job, or some other nonretaliatory reason.

The real question in many retaliatory discharge cases therefore becomes: Why was the employee actually fired?

That question has been at the center of this entire series.

Recommended Reading: What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?

Warning Sign #1: Your Treatment at Work Suddenly Changes After Your Injury

A change in treatment after a workers’ compensation injury does not automatically establish retaliation-but it can be important.

For example, an employee may have worked for the same employer for years with good evaluations and few disciplinary problems.  Then the employee gets hurt.  Suddenly:

• minor problems become written warnings;
• supervisors begin documenting conversations that were never documented before;
• performance evaluations change;
• absences become a major issue;
• management begins closely scrutinizing the employee’s conduct; or
• the employee is disciplined for conduct that previously went unnoticed.

One of the factors identified by the Alabama Supreme Court in Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002), is a sudden change in an employee’s work-performance evaluations after a workers’ compensation claim.

That does not mean every bad evaluation following an injury is retaliation.  It means the before-and-after evidence can matter.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun

Warning Sign #2: Someone in Management Is Complaining About Your Injury or Workers’ Compensation Claim

Most employers are not going to put in writing “We are firing you because you filed workers’ compensation.”

Retaliatory discharge cases are therefore frequently proved through circumstantial evidence.  Comments can matter.  For example:

“How long are you going to be out?” may be an entirely innocent question, but repeated complaints about medical appointments, the cost of the claim, restrictions, missed work, or the employee “getting a lawyer” may look very different depending upon the surrounding facts and who made the comments.

Aldridge specifically recognizes evidence of a negative attitude toward the employee’s injured condition as one circumstance that may help establish causation.

The identity of the person making the statement can also be important.

A comment by a coworker who had nothing to do with the termination decision is not necessarily equivalent to a statement by the supervisor or Human Resources official who decided to fire the employee.

Warning Sign #3: The Employer Suddenly Starts Enforcing a Policy Against You

Employers are generally entitled to enforce legitimate workplace policies, but suppose a policy has existed for years and was rarely enforced-for example, a ban on using cell phones at work.  Then an employee gets hurt, files a workers’ compensation claim, and suddenly the policy becomes extremely important.

We may want to know:

Was the policy really mandatory?

Was it enforced before the injury?

Were other employees disciplined for the same conduct?

Did supervisors have discretion?

Were exceptions regularly made?

Was progressive discipline normally used?

Did the employer follow its own procedures?

Failure to follow established company policy and different treatment of similarly situated employees are both circumstances recognized in Aldridge.

Recommended Reading: Can My Employer Fire Me for Violating a Company Policy After I File a Workers’ Compensation Claim?

Warning Sign #4: Attendance Becomes the Problem

Attendance is one of the most common issues we see after a workplace injury.  An injured employee may miss work for surgery, physical therapy, medical appointments, pain, or because the authorized physician has taken the employee completely off work.

That does not mean an employee can simply ignore an employer’s legitimate call-in and attendance requirements, but when attendance becomes the stated reason for termination, the details matter.

Was the employer aware of the medical absence?

Did the employee provide doctor’s excuses?

Was the workers’ compensation carrier authorizing the treatment?

Did the employer require daily call-ins while the employee was under an off-work order?

Was that requirement communicated?

How were similar absences handled for other employees?

The Alabama Supreme Court has repeatedly examined attendance and absence issues in retaliatory discharge cases. The existence of an attendance policy can help an employer—but the manner in which that policy was actually applied can be equally important.

Recommended Reading: Can My Employer Fire Me for Attendance Problems After a Workers’ Compensation Injury in Alabama?

Warning Sign #5: You Are Being Pressured to Work Outside Your Medical Restrictions

Another important situation occurs when the authorized doctor releases the employee with restrictions.

The employer says “We have light duty. Come back to work.”  That does not necessarily end the issue.

What exactly is the job?

What physical activities are required?

How many hours will the employee work?

Does the job actually comply with the doctor’s restrictions?

Has the doctor reviewed the proposed job?

And what happens if the employee cannot physically perform it?

An injured worker should be extremely careful about simply refusing an offer of work. Alabama workers’ compensation law contains provisions concerning the refusal of suitable employment, and refusal can potentially affect benefits, but an employee should also be careful about simply attempting work that appears inconsistent with the authorized physician’s restrictions.

This is one of those situations where getting advice before saying “yes,” “no,” or “I quit” can be particularly important.

Recommended Reading: Can My Employer Fire Me for Refusing Light-Duty Work After an Alabama Workers’ Compensation Injury?

Warning Sign #6: You Are Thinking About Quitting

This deserves special emphasis.

If you believe your employer is trying to make you quit, do not assume that resignation is legally the same thing as being fired.  Alabama recognizes the concept of constructive discharge, but the standard is demanding.

Generally, the employee must show much more than an unpleasant workplace, criticism, disagreement with a supervisor, or dissatisfaction with working conditions.

Quitting can substantially change the legal issues in a retaliatory discharge case.  Before resigning because you believe your employer is trying to force you out, it may be worth obtaining legal advice about what has actually occurred.

Recommended Reading: Can I Have an Alabama Retaliatory Discharge Claim If I Quit My Job? Understanding Constructive Discharge

Warning Sign #7: You Are Told Your FMLA Has Expired

An employee suffers a serious workplace injury, undergoes surgery and remains off work.

The employer designates the absence as FMLA leave.  Twelve weeks later, Human Resources sends a letter: “Your FMLA leave has been exhausted.”

That can be extremely important, but FMLA and Alabama retaliatory discharge law are separate protections.  The expiration of FMLA leave does not automatically establish that a subsequent termination is unlawful.

It also does not give the employer permission to terminate an employee because the employee pursued workers’ compensation benefits.

If termination follows FMLA exhaustion, the employer’s leave policies, treatment of other employees, communications, timing and actual reason for termination may all deserve examination.

Recommended Reading: Can My Employer Make Me Use FMLA While I Am Off Work for an Alabama Workers’ Compensation Injury—and Can I Be Fired When It Runs Out?

Warning Sign #8: The Employer’s Explanation Keeps Changing

This can be particularly significant.

Suppose the employee is initially told “We don’t have any work for you.”

Later, the employer says “You were terminated because of attendance.”

Then “Actually, it was a policy violation.”

Changing explanations do not automatically prove retaliatory discharge, but they can create an important credibility issue.

In Flint Construction Co. v. Hall, 904 So. 2d 236 (Ala. 2004), the employer initially told the employee that he was being terminated because of a lack of work. Evidence later established that explanation was not true, and other reasons for the termination emerged.  The Alabama Supreme Court concluded that the evidence permitted the jury to consider whether the employer’s stated reasons were pretextual.

In plain English: If the reason for firing someone is legitimate, we would ordinarily expect the employer to be able to tell us what that reason actually was without having to constantly provide different reasons.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case?

Warning Sign #9: You Receive Unemployment Papers After Being Fired

Do not assume an unemployment compensation proceeding is unrelated to a potential retaliatory discharge case.  What is decided there can sometimes matter later.

In certain circumstances, an administrative determination concerning the reason an employee was discharged can have collateral-estoppel consequences in subsequent litigation.  That does not mean every unemployment decision determines a retaliatory discharge claim, but an injured employee who believes the termination was retaliatory should think carefully before treating an unemployment proceeding as an unimportant formality.

Recommended Reading: Can an Unemployment Compensation Decision Hurt My Alabama Retaliatory Discharge Case?

Warning Sign #10: You Are Asked to Sign Something

After a workplace injury or termination, an employee may be presented with:

• a resignation;
• severance agreement;
• release;
• settlement agreement;
• acknowledgment;
• disciplinary notice; or
• other document concerning the end of employment.

Read it.

Get a copy.

And if you do not understand what rights you may be giving up, consider getting advice before signing it.  A document that appears to deal only with employment may contain broader release language.

Likewise, resolving a workers’ compensation case and resolving a separate retaliatory discharge claim are not necessarily the same thing, but settlement language which includes terms such as “any and all claims” in a workers’ compensation settlement could have detrimental effects on a potential retaliatory discharge claim.

Warning Sign #11: You Have Been Fired, but the Employer’s Reason Does Not Make Sense

Sometimes there is no warning.  The employee simply gets fired.  If that happens, write down what occurred while it is fresh.

Who told you?

What exactly did they say?

Was anyone else present?

Were you given a termination letter?

What reason was stated?

Did that reason differ from anything previously said?

Keep your texts, emails, medical restrictions, doctor’s notes, FMLA paperwork, handbook, evaluations and other documents you already lawfully possess.

Do not alter anything.

Do not delete unfavorable evidence.

And do not improperly access company systems or take confidential records you are not entitled to possess.

Evidence that seems insignificant on the day of termination can become important months later.

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

You Do Not Need a “Smoking Gun”

One of the themes running throughout this series has been that retaliatory discharge is often proved circumstantially.

That makes sense.

Employers rarely announce an unlawful motive.  Instead, lawyers and ultimately the Court may have to examine the pieces:

Timing.

Policies.

Attendance records.

Medical restrictions.

Performance evaluations.

Comparator evidence.

Emails and text messages.

Statements by supervisors.

The identity of the decision-maker.

When the termination decision was actually made.

And whether the employer’s explanation is consistent with the evidence.

At the same time, circumstantial evidence can cut both ways. Discovery may establish that an employer consistently enforced the same policy against injured and non-injured employees alike. It may establish an independent reason for the termination unrelated to workers’ compensation.

The purpose of investigating the case is not simply to collect facts supporting retaliation.  It is to determine what actually happened.

Why We Take These Details Seriously

Powell and Denny has handled retaliatory discharge cases through actual trial.  In one case, our firm represented an Alabama worker who suffered a serious job injury and was later terminated. The employer denied that the workers’ compensation claim caused the termination.

The case ultimately went to trial, and a $750,000 retaliatory discharge verdict for our client was awarded.

That result does not tell us what another case is worth, and every case depends upon its own facts.

What the experience did reinforce is something we have emphasized throughout this series:

Details matter.

The timing of events matters.

The employer’s policies matter.

The documents matter.

How other employees were treated matters.

What supervisors said matters.

And the explanation the employer gives for the termination matters.

Sometimes a fact that appears relatively minor when the employee first walks into a lawyer’s office becomes extremely important once the employer’s records are obtained and the witnesses are questioned under oath.

Recommended Reading: $750,000 Wrongful Termination Verdict in Bessemer, Alabama

Do Not Wait Too Long

There is one final reason not to ignore these warning signs; Retaliatory discharge claims have a statute of limitations.

Under Alabama law, retaliatory discharge claims are generally subject to a two-year limitations period. And filing or maintaining the underlying workers’ compensation case does not necessarily preserve a separate retaliatory discharge claim.

So, an injured worker should not assume “My workers’ compensation case is still open, so I can deal with the firing later.”

Those are separate claims with separate legal issues.

 

The Bottom Line

You do not necessarily need to wait until you are fired to ask whether your rights are being affected.

If something changes after a workplace injury—discipline, attendance problems, pressure concerning restrictions, questionable light duty, FMLA exhaustion, pressure to resign, changing explanations, or threats of termination—it may be worth understanding your rights before making a decision that is difficult to undo.

And if you have already been fired, the fact that the employer gave you a reason does not necessarily answer whether you have a retaliatory discharge claim.

The timing matters.

The documents matter.

The employer’s policies matter.

How other employees were treated matters.

What was said before and after the termination matters.

And sometimes what the employer does after the termination matters.

That has been the central point of this series.

Alabama law does not guarantee that an injured worker can never be fired.

It does provide an important protection against being fired solely because the worker exercised the right to pursue workers’ compensation benefits.

Determining which occurred requires looking beyond the label placed on the termination and examining the facts.

If you suffered an Alabama job injury and are concerned that your employer may be trying to terminate you—or if you have already been fired— 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