One of the biggest fears in Texas workers compensation after an injury is this:
Is my job safe? Will I be fired?
The answer to that gets complicated. I'll try to sort through this in a series of posts.
The first step is to define what we are talking about. Texas is generally considered an "at will" employment state. That means you don't have a right to your job unless there is a specific law prohibiting termination for the reason you were fired. Bottom line, in layman's terms, you can be fired for a good reason, a bad reason, or no reason at all. Just so long as the reason isn't on a list of illegal reasons.
An employer can fire you because you got into an argument with a co-worker, and that co-worker is his nephew. He can fire you because you were late to work too many times. He can fire you because he thinks you are stealing from the company (even if you aren't). All of this is valid and legal.
What an employer can't do in a workers compensation context is fire you in retaliation for filing or pursuing a workers compensation claim. The Texas labor Code provides:
Sec. 451.001. DISCRIMINATION AGAINST EMPLOYEES PROHIBITED. 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 proceeding under Subtitle A; or
(4) testified or is about to testify in a proceeding under Subtitle A.
First we'll deal with filing a workers compensation claim in good faith.
Most often the workers compensation claim is reported to the insurance directly by the employer. But sometimes the employee may have to go around the employer to file the claim. Many employers will either hide the claim (paying salary and medical bills out of pocket) to avoid filing the claim and watching their premiums go up. Other times the employer may hide the claim because a supervisor doesn't want to lose his safety bonus. Many companies, especially in the oilfield, will give bonuses based on no lost time injuries. So they will get upset and discourage an employee from pursuing an injury.
The law plainly prohibits this. You can sue for lost wages, other damages, and reinstatement.
Sec. 451.002. REMEDIES; BURDEN OF PROOF. (a) A person who violates Section 451.001 is liable for reasonable damages incurred by the employee as a result of the violation.
(b) An employee discharged in violation of Section 451.001 is entitled to reinstatement in the former position of employment.
(c) The burden of proof in a proceeding under this section is on the employee.
Filing a claim in good faith means that the claim was filed with an honest belief in the injury and entitlement to benefits. A claim can be made in good faith even if the claim is initially denied, disputed by the employer, or even ultimately determined not covered. However, if an injury is determined not to have occurred or not be covered, that would severely affect the value of the claim, if any.
The difficult part in most of these cases is obtaining proof that the reason for the termination was the workers compensation claim. Most employers will go to great lengths, even fabricating allegations of misconduct on the part of the employee, to avoid acknowledging termination for the workers' compensation claim being filed. An attorney can request evidence through depositions, written discovery, and subpoena to validate the reason for the firing and support the case.
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