It is illegal for your employer to terminate your employment for filing a Workers’ Compensation Claim. You are protected by the North Carolina General Assembly’s Retaliatory Employment Discrimination Act (REDA) which ensures that employers are not allowed to retaliate against employees who file workers’ compensation claims. You are also protected if you make complaints about occupational health and safety or complaints about your wages or hours.
You cannot be fired for filing a claim or complaint, for initiating an inquiry (or inspection, proceeding, etc.), or for providing information or testimony concerning the North Carolina Workers’ Compensation Act. Having said that, it is not impossible for your employer to make up another reason to fire you, such as poor work performance. If you believe that your employer has retaliated against you for filing a workers’ compensation claim or for any other reason, contact an attorney right away. A lawyer can protect your rights, help you get your job back, and ensure that you still receive the benefits that you are entitled to.
What are the Options?
The first step when you believe that you’ve been illegally retaliated against is to contact an attorney and file a formal complaint with the North Carolina Department of Labor, Employment Discrimination Bureau (EDB). You’ll need to have this complaint submitted within 180 days of the action that you believe to be retaliatory. At this time, the EDB will initiate an investigation to decide if there is any reasonable cause to believe that your termination was unlawful.
If the EDB determines that your employer terminated the employment in for lawful reasons, then you must pursue your concern without their help. You will receive a right to sue letter and should speak to an attorney right away if you have not already done so.
If the EDB determines that your employment was unlawfully terminated, then they will attempt to address this with mediation and negotiations. They may then file a lawsuit on your behalf or give you a right to sue letter to pursue the matter on your own.
You can request a right to sue letter once 180 days have passed from your complaint. If you receive a right to sue letter, then you must file a lawsuit within 90 days of receipt.
How Do You Prove Employer Retaliation?
To prove employer retaliation, you must demonstrate that you are entitled to workers’ compensation benefits, that you have filed a claim, and that you were retaliated against in some way because of this. Discharge is not the only possible retaliation that you might face. You may be demoted, have your hours or pay cut, have your position altered, or receive other unreasonable disciplinary actions. The most difficult challenge will be in proving that the adverse action occurred as an intentional response to your workers’ compensation claim.
To be successful in your case against the employer’s retaliation, you’ll need to pay attention to some of the relevant factors that can help you to prove your case. For example, the time between filing the claim and retaliation makes a difference, such as if you were retaliated against immediately after (or very soon after) filing the claim. Any communications of anger or disappointment from your supervisor regarding your workers’ compensation claim will also be important. Further, if the retaliatory act differs from the employers usual actions, this will help your case too. Finally, if the employer cannot offer a consistent explanation, then you have a stronger case.
It is not easy to prove retaliation, and it is not easy to stand up against the power of your employer and the company and lawyers that may stand behind them. Contact a workers’ compensation attorney can be the difference between success and failure in such cases, so contact one right away for a free consultation and assessment of your claim. Keep in mind that you only have three years to file a claim, from the date of the retaliatory action, so don’t let the statute run out.
What are the rules for minors and mentally incompetent individuals?
The rules are a bit different for minors and mentally incompetent adults. They are entitled to the same workers’ compensation benefits if they are injured at work, and they will receive the same form of wage compensation. However, there are no statutory limits for minors until someone is appointed as trustee to represent them.
The Industrial Commission can appoint a guardian ad litem or the county clerk may appoint a general guardian or guardian of the estate. If the Industrial Commission appoints someone, then this person cannot receive compensation on the minor’s behalf. However, a court appointed guardian can receive the compensation, as can the Clerk of the Court, a trustee with power of attorney, and/or a parent or guardian.