The first question I normally hear a potential client ask me during the initial interview process is if I make a workers’ compensation claim can my employer fire me? The answer is always yes, your employer can fire you. However, then my question for the potential client is, do you think your employer terminated you because you filed a workers’ compensation claim or because you asserted some right connected to the Illinois Workers’ Compensation Act? This may provide you with the means to sue your employer in court for what is commonly known as a retaliatory discharge action. A different analysis is needed if you have a written contract with your employer, via your union, or otherwise. These may provide you with different remedies in the event you are fired. However, a number of employees in Illinois are considered so-called “at-will” employees who can be hired or fired at will, as long as violation of a state, local or federal statute is not involved. In addition, this article does not cover potential actions under anti-discrimination laws, which also require a different analysis which will not be covered in this post.
The analysis for a potential retaliatory discharge case begins with Section 4(h) of the Illinois Workers’ Compensation Act which states as follows:
It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.
It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.
The statute is meant to protect employees who notify their employers that they have an injury arising out of work and then are quickly shown the door. For example, let’s say that you had a back injury that happened at work. You have informed your employer of your accident and injuries by giving proper notice and you have reviewed my previous posts, What Should I Do If I have an Accident at Work in Illinois as well as Tim’s Ten Tips on How to Prepare for Your First Call to a Chicago Attorney. Then you are required by your doctor to undergo physical therapy 3 times per week but your doctor releases you to work a light duty position at work. As per the Workers’ Compensation Act you bring your “light duty” slip from your doctor into your supervisor and he tells you that they do not have any light duty positions available at this time. You say “ok” to your supervisor because your attorney has instructed you that if your employer does not offer you light duty work within your restrictions then you should go home and the employer is required to pay you Temporary Total Disability payments. You then go home and continue with your physical therapy per your doctor’s orders.
Eventually, your doctor releases you to go back to work full duty. You have worked hard on your recovery and you are ready to be back at your job again. You bring in your “full duty” release slip from your doctor to your supervisor. However, your supervisor then calls you into another office at your jobsite and in that office is your company’s Human Resources supervisor. The HR supervisor proceeds to tell you something like “Hey Bob, we need you to turn in the keys to your locker, hand in your company cell phone and uniform.” Your prior record at the company has been exemplary and you have never been written up or orally reprimanded by your company in the past. However, the HR supervisor now tells you that you had 2 instances of unauthorized telephone calls to your wife in the last 6 months. Based on this, they have terminated you, effective immediately, and they hand you a check for any unused vacation days.
You know that you were never spoken to in the past about calling your wife once in awhile at work and your co-workers all regularly do this. This is what is known as a “pre-text” for firing you-essentially an after-the-fact reason to terminate you because you decided to ask your employer to do what it is already required to do under the law-pay your medical benefits and TTD while you are off work.
Based on the above hypothetical scenario, you may have a case for retaliatory discharge in Illinois. However, each case is different and is very fact based. Other cases may be more clear cut. You may get injured, file a work comp claim and the employer calls you in and calls you an unsavory name and tells you “I can’t believe you filed a claim. I am firing you. I will get someone else in here today to do your job.” The key thing to remember is to file a claim right away with the Illinois Workers’ Compensation Commission. There are somewhat different protections if you do this. This may establish better evidence of retaliatory intent if you are in fact fired.
If you feel that you may have a claim you should consult an attorney such as myself who handles these claims for a free consultation. Possible benefits that you could get at trial are back pay, lost employee benefits, and in rare circumstances, punitive damages.