YOU VE BEEN SUED FOR WORKERS COMP RETALIATION-- NOW WHAT?

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1 YOU VE BEEN SUED FOR WORKERS COMP RETALIATION-- NOW WHAT? In reaction to what was perceived by many to be an insurance crisis in the late 1980s to early 1990s, Texas lawmakers undertook significant measures to reform the Texas Workers Compensation Act. As a result of those sweeping legislative changes, the number of workers compensation insurance claim lawsuits in Texas was drastically reduced. Although the legislative overhaul of the Texas workers compensation system achieved many intended results, the legislators did not deem it necessary to modify the statutorilycreated cause of action for so-called workers comp retaliation. Such lawsuits remain among the most potentially dangerous and expose unsuspecting employers to large damages awards. An employer sued for workers comp retaliation may find himself or herself asking: Now what? I. What Are The Legal Issues? Workers compensation retaliation claims are creatures of statute whose present-day origins can be traced to Article 8307(c) of the Texas Revised Civil Statutes Annotated. Article 8307(c) was repealed and replaced, effective September 1, 1993, by Chapter 451 of the Texas Labor Code. The prohibitions contained in Chapter 451 are the same as those which existed in Article 8307(c). A. Texas Labor Code prohibits discrimination by private employers. Texas Labor Code prohibits a person from discharging or in any other manner discriminating 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;

2 (3) instituted or caused to be instituted in good faith a proceeding [under the Texas Workers Compensation Act]; or (4) testified or is about to testify in a proceeding [under the Act]. Because workers comp retaliation claims are statutory in nature and scope, the starting point for analyzing any such claims begins with the following questions: (1) Did the employer discharge the employee or otherwise discriminate against the employee in some manner (i.e. treat the employee more harshly or in a disparate manner as compared to similarly-situated employees)? (2) If so, is there direct or circumstantial evidence suggesting that the underlying reason was because the employee engaged in (or was suspected of engaging in) one or more of the four statutorilyprotected activities (i.e. filed a claim, hired a lawyer, instituted a proceeding for workers comp benefits, or testified at a hearing)? B. State and local government employers. While the statutory prohibitions of Chapter 451 apply to virtually every person in the private sector, the same can not be said for those who toil in the public sector. Texas courts interpreting the scope of Chapter 451 and its application to governmental employers have struggled mightily with respect to the issue of sovereign immunity. Courts have found that sovereign immunity has been waived with respect to Chapter 451 for some, but not all, governmental employers. The question of whether or not a public sector employee may pursue a workers comp retaliation lawsuit is largely determined by the identity of his or her employer. Some are immune from suit, while some

3 are not. For example, in Clark v. University of Texas Health Science Center, 919 S.W.2d 185, 188 (Tex. App. - Eastland 1996, writ denied) employees of the University of Texas System were found not covered by the anti-retaliation provisions of Chapter 451. The fact that some employees are covered by Chapter 451 whereas other public employees are not has been held not to violate the equal protection provisions of the Constitution. Id. Many, if not most, of the larger public employers are covered by Chapter 451. For example, Tex.Lab.Code (a) provides that Chapter 451 applies to employees of political subdivisions. Canutillo Indep. School District v. Olivares, 917 S.W.2d 494, 496 (Tex. App. - El Paso 1996, no writ). Likewise, sovereign immunity for municipalities has been held to have been waived for claims under Chapter 451, although municipalities can not be held liable for punitive damages and the amount of actual damages recoverable is limited. City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995); Kuhl v. City of Garland, 910 S.W. 929 (Tex. 1995). C. Nonsubscribers Employers who voluntarily opt out of the Texas workers compensation system--i.e. affirmatively notify the Texas Workers Compensation Commission that they do not provide workers compensation insurance coverage for their employees--are referred to as nonsubscribers. Beginning in the mid-1980s, during the so-called insurance crisis, an increasing number of Texas employers became nonsubscribers to avoid the high cost of workers compensation insurance. Thereafter, Texas courts began to struggle with issue of whether nonsubscribers were subject to liability under Chapter 451. The issue eventually was resolved by the Texas Supreme Court s decision in Texas Mexican Railway Co. v. Bouchet, 963 S.W.2d 52, (Tex. 1998), which held that nonsubscribers are not subject

4 to Chapter 451 actions (because Chapter 451 protects only persons who can file workers compensation claims under the Texas Workers Compensation Act). II. What Are The Procedural Issues? A. Notice of claim and service of process. A critical inquiry in virtually every workers comp retaliation claim is whether the retaliation claim was filed timely? Chapter 451 does not have its own statute of limitations; therefore, the two-year statute of limitations for personal injury torts is applicable. Almazan v. United Services Auto Association, 840 S.W.2d 776 (Tex. App. - San Antonio 1992, writ denied). The Texas Supreme Court has held that the statute begins to run when the employee receives unequivocal notice of his or her termination or when a reasonable person should have known of his or her termination. Johnson & Johnson Medical v. Sanchez, 924 S.W.2d 925, 928 (Tex. 1996) (placing an employee on indefinite medical layoff was insufficient notice of termination); see, also, Thurman v. Sears Roebuck & Company, 952 F.2d 128, 131 (5 th Cir. 1992), reh g denied 957 F.2d 869 (5 th Cir. 1992), cert. denied, 506 U.S. 845 (1992). The notice issue also is important in those cases in which the plaintiff alleges retaliatory layoff, transfer, demotion, etc. or in cases in which the plaintiff has alleged a retaliatory constructive discharge. In those cases, the courts have held that the statute of limitations begins to run when the plaintiff has been given actual notice of his or her layoff, demotion, transfer, rather than when the adverse action actually occurs. For example, in Davila v. Lockwood, 933 S.W.2d 628 (Tex. App. - Corpus Christi 1996, no writ) the court held that the plaintiff s cause of action for constructive discharge due to a hostile work environment accrued when the plaintiff gave his two-week notice that he was quitting, not when he actually quit his job. The court concluded that the plaintiff

5 would have had notice of the intolerable working conditions not later than the point at which the plaintiff felt compelled to resign. Notably, Chapter 451 does not apply to applicants for employment. Therefore, an employee who is permanently laid off or terminated from employment can not resurrect the limitations period by making subsequent requests for rehire. Smith v. Coffee s Shop for Boys and Men, Inc., 536 S.W.2d 83, 84 (Tex. App. - Amarillo 1976, no writ) Likewise, a plaintiff pursuing a Chapter 451 cause of action must plead and prove that he or she was an employee of the defendant employer at the time of the incident made the basis of the lawsuit, i.e. independent contractors or former employees may be precluded from pursuing a workers comp retaliation claim. See Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469 (Tex. 1965) (independent contractor not entitled to Chapter 451 protection); Mayo v. Southern Farm Bureau Casualty Insurance Company, 688 S.W.2d 241 (Tex. App. - Amarillo 1985, writ refused n.r.e.) (driver of leased truck lacks standing as an employee to pursue a Chapter 451 claim); Stoker v. Furr s Inc., 813 S.W.2d 719 (Tex. App. - El Paso 1991, writ denied) (Chapter 451 does not protect job applicants). B. State v. federal court. Ordinarily, workers comp retaliation suits under Chapter 451 may not be filed in federal court or removed to federal court, even if the diversity and amount in controversy requirements are satisfied. See Anderson v. American Airlines, Inc., 2 F.3d 590 reh g denied 9 F.3d 105 (5 th Cir. 1993); Jones v. Roadway Express, Inc., 931 F.2d 1086, 1092 reh g denied 936 F.2d 789 (5 th Cir. 1991). Moreover, at least one court has held that a Chapter 451 suit can not be removed to federal court even if it is pendent to a federal question claim. Sherrod v. American Airlines, 132 F.3d 1112 (5 th Cir. 1998)

6 C. Burdens of proof. To prevail on a workers comp retaliation claim under Chapter 451, an employee must prove that he or she was discharged or received some other adverse treatment from his employer because the employee (1) filed a workers compensation claim in good faith, or (2) hired a lawyer to represent the employee in a claim, or (3) instituted or caused to be instituted in good faith a proceeding under the Workers Compensation Act, or (4) testified (or is about to testify) in a workers compensation proceeding. Texas Labor Code The employee must demonstrate by direct or circumstantial evidence a causal connection between the discriminatory or retaliatory act and the employee s participation in activities protected by Chapter 451. Continental Coffee Products Company v. Cazarez, 937 S.W. 2d 444 (Tex. 1996); Palmer v. Miller Brewing Company, 852 S.W.2d 57, 61 (Tex. App. - Fort Worth 1993, writ denied). A number of Texas courts have liberally applied the burden of proof standards with respect to the plaintiff s proof of a causal connection between an adverse action and the plaintiff s filing of or participation in the pursuit of a workers compensation claim. It is not necessary, for example, that the worker s compensation claim for benefits have been the sole cause for the discharge or discrimination; the plaintiff must show only that without the claim, the discharge or discrimination would not have occurred. Continental Coffee Products Company v. Cazarez, 937 S.W. 2d 444, 451 n.3 (Tex. 1996) (uniform enforcement of reasonable absence-control provision does not constitute a retaliatory discharge). Likewise, it is not necessary that the employee actually have filed a claim for worker s compensation prior to being discharged, it is sufficient if the employee took steps toward instituting a proceeding, such as informing the employee of his or her injury. Worsham Steel

7 Company v. Arias, 831 S.W.2d 81, 84 (Tex. App. - El Paso 1992, no writ); Borden, Inc. v. Guerra, 860 S.W.2d 515, 521 (Tex. App. - Corpus Christi 1993, dis. agr.) (notifying employer of injury and completing injury report was sufficient); Southwestern Electric Power Company v. Martin, 844 S.W.2d 229, 232 (Tex. App. - Texarkana 1992, den.) (employee s request for a hearing on his request for a lump-sum settlement of benefits claim was sufficient). Once the employee establishes the necessary causal connection between his or her claim for workers compensation benefits (or participation in other protected activity) and the adverse employment action made the basis of the workers comp retaliation suit, the burden shifts to the employer to rebut the alleged discrimination. The employer must show that there was a legitimate reason for the discharge or other adverse action, which will be determined on a case-by-case basis. Continental Coffee Products Company v. Cazarez, 937 S.W. 2d 444 (Tex. 1996). Although the ultimate burden of persuasion is on the plaintiff/employee, the employer must establish a legitimate, non-discriminatory reason for the discharge or other adverse employment action or otherwise demonstrate that the employee has failed to produce any evidence of retaliatory motive. Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994). Essentially, the decision in Carrozza follows the standard of proof developed by the federal courts in discrimination and retaliation suits under Title VII of the Civil Rights Act of If the employer offers a legitimate business reason for the discharge or other adverse employment action, then the plaintiff must show that the employer s explanation is merely a pretext. See Terry v. Southern Floral Company, 927 S.W.2d 254 (Tex. App. - Houston [1 st Dist.] 1996, no writ)

8 III. What Are The Evidentiary Issues? A. Direct Evidence. As is true in most cases involving claims of discrimination or retaliation, one way in which a plaintiff can demonstrate a causal link between the employee s actions and the employer s motive is to offer direct evidence of a discriminatory or retaliatory motive on the part of the employer. Most often, that evidence comes in the form of negative comments or actions by the plaintiff s supervisors or the persons involved in the decision to terminate or otherwise take adverse action against the plaintiff. Essentially, the plaintiff demonstrates by those comments or actions that the employer had hostility toward the injured plaintiff in particular or the workers compensation system in general. See, e.g., Chemical Express Carriers v. Pina, 819 S.W.2d 585, 590 (Tex. App. - El Paso 1991, writ denied) (supervisor s comment that plaintiff would sue the company was direct evidence of discrimination); Van- Tran Electric Corp. v. Thomas, 708 S.W.2d 527 (Tex. App. - Waco 1986, writ ref d n.r.e.) (company official telling employee he would make sure employee never got another job was sufficient direct evidence). See, also, Munoz v. H&M Wholesale, Inc., 926 F.Supp. 596 (S.D. Tex. 1996) (causal link demonstrated by statement that employee was discharged because the company feared he would re-injure his back and because he should have claimed his back injury on his personal health insurance rather than filing a workers compensation claim). B. Circumstantial evidence. In most workers comp retaliation cases, the causal link necessary to satisfy the plaintiff s burden of proof is established by circumstantial, rather than direct, evidence. Usually, the employee attempts to prove that the employer had knowledge of the employee s injury and/or workers compensation claim before making a decision to discharge the

9 employee or otherwise take adverse action against him or her. See, e.g., America West Airlines, Inc. v. Tope, 935 S.W.2d 908, (Tex. App. - El Paso 1996, no writ) (negative attitude toward employee after learning of his injury and failing to follow company disciplinary policy was sufficient circumstantial evidence of retaliatory motive). Evidence that the stated reason for the discharge is false may also be relevant, albeit circumstantial, evidence. Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665 (Tex. App. - Corpus Christi 1997, no pet.). Likewise, sudden changes in an employee s job performance evaluations following a worker s compensation claim have been found to be sufficient circumstantial evidence of discriminatory motive. Castor v. Laredo Community College, 963 S.W.2d 783, 785 (Tex. App. - San Antonio 1998, no pet.). Finally, the timing of adverse action against an employee in relation to the date of his or her injury or worker s compensation claim may be sufficient to establish a causal connection. Porterfield v. Galean Hospital Corp., 948 S.W.2d 916 (Tex. App. - San Antonio 1997) (employee fired on the Monday after compensible claim on the preceding Friday). Circumstantial evidence has found to be insufficient to establish the necessary causal link, if that evidence is based solely upon the injured employee s subjective belief that he was discharged because of his workers compensation claim. Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994); Terry v. Southern Floral Company, 927 S.W.2d 254 (Tex. App. - Houston [1 st Dist.] 1996, no writ); see, also, Continental Coffee Products Company v. Cazarez, 903 S.W.2d at 79. The timing of an employee s discharge can also work in the employer s favor and may provide circumstantial evidence that an employee s workers compensation claim was not the reason for discharge. For example, in Burfield v. Brown, Moore and Flint, Inc., 51 F.3d 583, 589 (5 th Cir. 1995) (a 15-month

10 interval between the filing of a workers compensation claim and the plaintiff s discharge was deemed to be probative evidence of a lack of retaliatory motive. Moreover, if an injured plaintiff is no longer capable of performing the essential functions of his job due to his workrelated injury, he may be terminated by the employer without liability under Chapter 451. Id. at 559. C. Potential defenses. A commonly-used defense in a workers comp retaliation claim is the employer s uniform application of a leave of absence policy or an attendance control policy. While not an affirmative defense per se, a number of courts have accepted the uniform application of such policies as persuasive evidence that the employer lacked the requisite retaliatory or discriminatory animus, i.e. the employer s reason for the discharge or adverse action was based upon legitimate, non-discriminatory, business reasons. See, e.g., Swearingen v. Owens-Corning Fiberglass Corp., 968 F.2d 559 (5 th Cir. 1992) (termination as a result of two-year leave of absence policy upheld); Parham v. Carrier Corp., 9 F.3d 383 (5 th Cir. 1993) (two-year leave of absence policy for both work and non-work-related injuries was upheld); Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) (threeday no call/no show policy upheld); Palmer v. Miller Brewing Company, 852 S.W.2d 57 Tex. App. - Fort Worth 1993, writ den.) (termination due to excessive absenteeism policy upheld). As noted previously, a claim for discrimination or retaliation under Chapter 451 is governed by a two-year statute of limitations, which begins to run when the cause of action accrues. Failure of the plaintiff to file suit within the two-year limitations period will

11 subject the plaintiff s claim to a limitations defense. Reeves v. Houston Lighting and Power Company, 4 S.W.3d 374, 376 (Tex. App. - Houston [1 st Dist.] 1999, pet. den.) Some employers have successfully argued that 301 of the federal Labor Management Relations Act (which provides a federal cause of action for the breach of a collective bargaining agreement) may preempt an employee s claim under Chapter 451 in those situations in which the employee s claim requires the interpretation of the applicable collective bargaining agreement. Reece v. Houston Lighting and Power Company, 79 F.3d 485, 487 (5 th Cir. 1996), cert. denied. 117 S.Ct. 171 (1996); see, also, Johnson v. Alcatel Network Systems, Inc., 963 F.Supp. 599 (N.D. Tex. 1997). The mere existence of a just cause provision in a collective bargaining agreement may not be sufficient, however, to preempt a workers comp retaliation claim in all instances. If the employee s claim is independent of the collective bargaining agreement and does not require an interpretation of the collective bargaining agreement, courts have held that there is no preemption of the claim. International Union v. Johnson Controls, Inc., 786 S.W.2d 265 (Tex. 1990). Courts have held that an employee is not required to exhaust an arbitration remedy provided in a collective bargaining agreement before filing suit under Chapter 451. International Union United Auto Aerospace and Agricultural Implement Workers Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558 (Tex. App. - Dallas 1991, writ denied); Bonner v. Fleming Companies, Inc., 734 S.W.2d 764, 765 (Tex. App. - Fort Worth 1987, writ denied). However, exhaustion of administrative remedies may be required before suit is filed against a governmental defendant. See, e.g., Wilmer-Hutchins Independent School District v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001)

12 As noted previously, sovereign immunity may provide a defense to a claim under Chapter 451. City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995) (sovereign immunity as to municipal governments waived); Harrison County v. Louvier, 956 S.W.2d 106 (Tex. App. - Houston [14 th Dist.] 1997) (no waiver of sovereign immunity with respect to claims against counties for pre-1991 injuries). NOTE: With respect to retaliatory discharge actions against counties concerning injuries that occurred in 1991 or later, the claimant must present the claim to the county commissioners court before filing suit against the county, and the county is entitled to have the suit abated (but not dismissed) if the claimant fails to meet the claim presentation requirement. County of Bexar v. Garcia, 974 S.W.2d 107, 109 (Tex. App. - San Antonio 1998, no pet.). Also, as noted previously, state agencies may be sued for retaliatory discharge, but damages in such a suit are subject to the damages caps in the Texas Tort Claims Act. Kerrville State Hospital v. Fernandez, 28 S.W.3d 1, 10 (Tex. 2000), and the defense of official immunity is available only to a governmental employee sued in his individual capacity. Battin v. Samaniego, 23 S.W.3d 183, 187 (Tex. App. - El Paso, pet. den.) Finally, although not a defense or complete bar to the filing of a lawsuit, the doctrine of after-acquired evidence may limit the scope of a plaintiff s recovery in a Chapter 451 action. The after-acquired evidence doctrine has been adopted in Texas as a limitation on an employee s recovery in a retaliatory discharge claim if the employer establishes that, after the employee was fired, the employer discovered that the employee had engaged in serious misconduct which would have served as a legitimate basis for discharge (if the misconduct had been known at the time of the discharge). In such circumstances, the court may not order reinstatement as a remedy and the employee may not recover actual

13 damages for the period after the employer discovered the existence of facts which would have justified the employee s termination (i.e. the employee will be entitled to claim back pay only from the date of the unlawful discharge to the date that the employer discovered the employee s misconduct). Trico Technologies Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997). IV. What Are The Potential Damages And Remedies? A. Actual damages. Section (b) provides that a successful plaintiff may be entitled to reinstatement and the payment of reasonable damages. A successful plaintiff may be entitled to recover actual damages, even if reinstatement is not sought as a remedy. Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex. App. - Tyler 1994, n.w.h.). In addition, if reinstatement is awarded, such relief may be inconsistent with an award of future wage damages for the same period of time--requiring the plaintiff to make an election of remedies to avoid a double recovery. Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799 (Tex. App. - San Antonio 1997). An employee who seeks reinstatement has the burden of proving that he or she is physically capable of performing the duties of his or her former job. Parham v. Carrier Corp., 9 F.3d 383, 389 (5 th Cir. 1993). An employee s subjective belief or statements that he or she is able to return to work are not sufficient to meet this burden of proof. Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex. App. - Tyler 1979, writ ref d n.r.e.). Actual damages include lost wages and benefits (past and future) as measured by the amount of money which the employee would have earned (or would be expected to earn in the future) if the employee had not been discharged or discriminated against in violation of the statute. See Stevens v. National Education Centers, Inc., 990 S.W.2d 374, 378 (Tex. App. - Houston [14 th Dist.] 1999, pet. den.). However, an employee may not be permitted to

14 recover damages for an injury for which the employee already has received workers compensation benefits. Conex Intern. Corp. v. Cox, 18 S.W.3d 323, 325 (Tex. App. - Beaumont 2000, pet. den.) In addition to being entitled to recover out-of-pocket and future monetary losses, a successful plaintiff in a Chapter 451 suit may be entitled to recover mental anguish damages upon proof that the plaintiff has experienced a high degree of mental pain and distress (i.e. more than mere disappointment, anger, resentment, embarrassment, etc.). Trevino v. Southwestern Bell Telephone Company, 582 S.W.2d 582 (Tex. App. - Corpus Christi 1979); see, also, Texas Health Enters., Inc. v. Kirkgard, 882 S.W.2d 630, 634 (Tex. App. - Beaumont 1994, writ denied). The determination of the amount of mental anguish damages is left to the broad discretion of the jury. Worsham Steel Company v. Arias, 831 S.W.2d 81, 85 (Tex. App. - El Paso 1992, no writ); see, also, Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654 (Tex. App. - El Paso 1989, writ denied) ($100,000 jury award upheld where plaintiff was bedridden at the time of termination, plaintiff s wife was ill and pregnant at the time, plaintiff had severe financial stresses at the time, plaintiff had no other source of income, all of which ultimately led to a break-up of plaintiff s marriage). B. Exemplary damages. Exemplary damages are recoverable in a wrongful discharge suit under Chapter 451. Azar Nut Company v. Caille, 734 S.W.2d 667, 669 (Tex. 1987). However, a plaintiff may not recover exemplary damages if he or she fails to prove actual damages. Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799 (Tex. App. - San Antonio 1997). Exemplary damages are available only if the employer acted with actual malice. Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996). The plaintiff also must show

15 that his or her employer had animosity toward the plaintiff personally or desired to injure the plaintiff; proof that the termination was merely wrongful is insufficient to establish malice. C&D Robotics, Inc. v. Mann, 47 S.W.3d 194, 201 (Tex. App. - Texarkana 2001, no writ). Only egregious violations of the law will support an award of exemplary damages. Stevens v. National Education Centers, Inc., 990 S.W.2d 374, 377 (Tex. App. - Houston [14 th Dist.] 1999, pet. den.) C. Injunctive relief. Section provides that a court may restrain, for cause shown, a violation of Section Although Section refers to a district court s power to restrain, by injunction, violations of Section , county courts have been held to have concurrent subject matter jurisdiction with the district courts over workers compensation retalation claims. Continental Coffee Products Company v. Cazarez, 937 S.W.2d 444 (Tex. 1996). D. Costs and attorneys fees. Absent a specific statutory authorization or an agreement between the parties for such a recovery, attorneys fees are not considered reasonable damages suffered by an employee and, thus, are not recoverable in a workers comp retaliation claim. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999). V. How Can Retaliation Claims Be Avoided? A. Restricted duty policies. So-called light duty policies can, if administered correctly, serve as a valuable tool in limiting or preventing workers comp retaliation claims. Such policies can demonstrate and employer s willingness to accommodate an injured employee s workrelated restrictions. Without the availability of such light duty, an employer s only other

16 option in many instances may be to layoff or discharge the injured employee, thereby setting the stage for an employee to claim that his or her workers compensation claim was the reason for the layoff or discharge. If employer does establish a light duty policy, the employer should create the light duty position for a limited amount of time and should inform the returning employee that the light duty assignment is temporary in nature. In determining the extent to which such light duty positions will be made available, the employer should obtain input from the injured employee s doctor regarding whether or not the employee s physical limitations will permit the employee to perform the essential functions of the light duty position. Upon return to work, the injured employee should be monitored to determine whether or not he or she is able to satisfactorily perform the work required and to determine whether or not the employee is attempting to work beyond the restrictions imposed by the employee s doctor. The employee s supervisor should be cautioned against asking the employee to exceed the agreed upon work restrictions and further should be cautioned against making any negative comments about the employee s limited ability to work. B. Attendance policies. As noted previously, attendance policies and neutral leave of absence policies can serve as a legitimtae non-discriminatory basis for discharge or taking other action perceived by an employee as adverse. Texas Division - Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994). The key to utilizing such policies as a defense to a Chapter 451 claim is the uniform and neutral application of the policy, i.e. the policy should be applied the same to all employees

17 The policy should make clear that if any employee does not return to work within the maximum leave of absence, or if the employee fails to call in or show up for work for a consecutive number of days, then the employee will be subject to automatic termination from employment. The policy also should set forth the circumstances and requirements for an employee s return to work after a leave of absence, such as being required to submit to a return-to-work physical examination after an extended leave of absence or being able to return to the employee s former job (even though the employee has been replaced during his or her absence). The policy also should require periodic obligations on the part of the employee to keep the employer informed of his or her status and expected dates of treatment or return to work. Likewise, the policy also should provide a procedure whereby an employee is required to submit a written request to extend a leave of absence if warranted or necessitated by the circumstances. Finally, a leave of absence policy which affords an employee the opportunity to reapply--if termination occurred under the leave of absence policy while the employee was otherwise in good standing--tends to show that an employer does not have animosity toward injured workers. C. Documentation of performance problems. Observed job performance deficiencies should be documented as they occur and corrective action taken immediately thereafter. If an employer discharges an employee because of a chronic performance or absenteeism problem shortly after an employee has filed a claim for workers compensation, an inference may be created that the true motivation for the employer s action was workers comp retaliation. If an employer has become lax in documenting and correcting performance or attendance problems prior to a workers compensation claim being filed, the employer may find it difficult if not impossible to

18 terminate the offending employee after notice of a workers compensation claim has been submitted. Being able to demonstrate that the employee s job performance or attendance has been deficient in various respects prior to the employee s workers compensation claim may prove to be the key evidence in a workers comp retaliation case. It is necessary, when documenting workers compensation claims, that all related records be kept separate from an employee s personnel file. The employee s supervisor should not be involved in administering the employee s workers compensation claim, although it is advisable to notify the supervisor that the claim exists (to prevent the supervisor from being tempted to make negative comments about the employee s claim). Likewise, the supervisor s compensation should not be dependent upon such cost-saving measures as the reduction of on-the-job injuries. Similarly, supervisors should be instructed not to engage in their own independent investigations of the employee s worker s compensation claim or to offer opinions to others regarding the bona fides of the employee s claim. Such circumstantial evidence often forms the basis of an employee s workers comp retaliation claim and sometimes can be difficult to rebut

19 YOU VE BEEN SUED FOR WORKERS COMP RETALIATION-- NOW WHAT? by Gary L. Ingram JACKSON WALKER L.L.P. 901 Main Street, Suite 6000 Dallas, Texas (214) and JACKSON WALKER L.L.P. 301 Commerce Street, Suite 2400 Fort Worth, Texas (817) c. 2002

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