What remedies are available in a workers' compensation wrongful termination claim?
If an employee is terminated in retaliation for filing a workers' compensation claiming good faith, hiring an attorney, or testifying in a workers' compensation proceeding, the employer is liable for damages under the Texas Workers' Compensation Act:
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.
The law therefore provides that an employee may be reinstated to his or her position as part of the order from a wrongful termination lawsuit. Most of the time, however, the employers are loathe to have a terminated employee come back, so it is often part of the settlement agreement that the employee not re-apply for that employer.
It is important to understand the employee has the burden of proof. Texas is an at-will state, so the employee has to show that the termination occurred for an improper retaliatory reason/retaliatory motive on the part of the employer, all related to the circumstances surrounding the workers' compensation injury. Otherwise it is a legal termination and the employee could file for unemployment, but not collect any damages for termination.
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