Can your boss fire you for filing workers comp in North Carolina?
The North Carolina General Assembly adopted the Retaliatory Employment Discrimination Act (REDA) to protect employees against employer retaliation under certain circumstance, including the filing of a workers’ compensation claim. Occupational safety and health complaints, along with wage and hour complaints, are also
protected activities. The wording of REDA states that “an employee may not be discharged (or discriminated against) in retaliation for performing the following activities (or threatening to perform the following activities) in good faith:
- Filing a claim or complaint;
- initiating an inquiry, investigation, inspection, proceeding, or other action; or,
- providing information or testimony to any person – concerning the North Carolina Workers’ Compensation Act.”
In addition to the statutory prohibitions, the state of North Carolina offers some protection under common law, which also prohibits employers from retaliating against employees who engage in protected actions.
Know Your Options
If you believe that your employer has illegally retaliated against you, you may also file a formal complaint with the North Carolina Department of Labor, Employment Discrimination Bureau (EDB). You must submit the complaint within 180 days of the retaliatory action. EDB initiates an investigation and determines whether there is reasonable cause to believe that the discharge was unlawful.
- If the EDB finds against the employee, the agency will provide a right to sue letter and the employee must pursue the matter independently.
- If the EDB finds for the employee, the agency will work to resolve the matter through mediation and negotiations. If these efforts are not successful, the EDB can file suit on behalf of the employee or issue a right to sue letter for the employee to pursue the matter independently.
- If 180 days pass after your initial complaint, you can request a right to sue letter.
- Once the right to sue letter is issued, you have 90 days to file a lawsuit in an appropriate North Carolina Court.
A showing of employer retaliation requires proof of the following elements:
- You are an employee entitled to workers’ compensation benefits;
- You filed a workers’ compensation claim;
- You suffered from an adverse employment action, including discharge from employment or some other type of punishment; and
- Your employer imposed the adverse action because of your filing.
In addition to firing, there are other adverse actions that an employer may take against a filing employee. Some examples include:
- lower pay;
- alterations in position of work responsibilities; and
- unreasonable disciplinary actions.
One of the most difficult tasks in showing retaliation is proving that the adverse action is in response to your workers’ compensation filing. For a successful case, you must prove that that the firing was a substantial factor in the adverse action taken against you. Use the specific circumstances of your case to help prove your case. Some relevant factors include:
- The time between your claim filing and the act of retaliation – If the adverse action occurred immediately following your workers’ compensation filing, this supports your contention that the adverse action was an act of retaliation.
- Communications of anger about your filing by your supervisor – If your supervisor expressed anger or disappointment at your decision to file a workers’ compensation claim, this may also assert your case.
- The firing deviated from the employer’s normal practices – If the adverse action differs from your employer’s normal course of action, this can support your claim.
- Previous firings of employees filing workers’ compensation claims – It can work to your favor if your supervisor has a history of punishing employees who file workers’ compensation claims.
- Inconsistent explanations for adverse actions – If your employer cannot provide a consistent explanation for the punishment you received, this lends support to your claim.
If you believe that your employer retaliated against you, it is advisable that you contact a workers’ compensation attorney in your state to walk you through the steps of filing a lawsuit. Keep in mind that there is a statute of limitations in place, which limits the amount of time you have to file suit. Failure to file within the allotted time can result in your losing the right to ever bring the case to court. Under North Carolina law, the statute of limitations is three years from the date of the retaliatory action.
What if the injured party is a minor or incompetent?
Minors and incompetent adults are entitled to the same workers’ compensation benefits as adults when experiencing work related injuries. Their wage loss compensation does not differ from that of an adult counterpart. In situations where the minor’s injuries are permanent or long term, exceeding 52 weeks, payment is calculated at the same rate paid to an adult who works for the same employer in a substantially similar type of position.
No statutory time limitations run against the minor until a trustee is appointed to represent his interests. In these cases, there are two ways that a guardian may be chosen.
- The Industrial Commission may appoint a guardian ad litem to pursue a workers’ compensation claim on behalf of the minor or incompetent individual.
- A general guardian or guardian of the estate may be appointed by the county clerk.
Industrial Commission appointees may not receive any cash compensation on the minor’s behalf. Court appointed guardians can receive compensation. Other parties that can receive compensation on behalf of the minor are:
- The Clerk of the Court;
- A trustee with power of attorney over the minor’s affairs;
- The clerk of court, when small sums are due; and
- In some situations, a parent or person in place of the parent.