What Should I Do if I'm Fired for Retaliation?

In employment law, retaliation firing is when an employer discharges an employee for filing a complaint against the company. While a workers' comp claim isn't necessarily a "complaint," employees may find themselves in a similar position if the employer is angry about their worker's compensation insurance premiums going up because of a claim. Your employer cannot fire you for filing a workers' compensation claim because it is illegal. This kind of illegal action opens them up to a lawsuit for retaliation.

Proving retaliation in the workplace can be challenging and legal requirements for proof will vary from state to state. However, generally speaking, an employee and their legal counsel must prove the following for a successful outcome.

• The employee was fired or somehow punished by the employer
• The employee exercised their rights that were protected under law or rightfully opposed the employer's illegal actions
• A clear link between the employee's termination after engaging in protected activities such as filing a workers' comp claim

While proving an employee was fired for retaliation is very difficult, evidence can help tremendously. There are two primary sources of evidence that can be used, which are:

Direct evidence: Direct evidence is tangible evidence such as letters, emails, text messages, voicemail messages, witness statements, and even verbal discussions. Another form of direct evidence could be a history of exemplary performance reviews followed by a sudden change in the final performance review after you had engaged in exercising your protected rights. The communications will need to demonstrate a link between the protected activity and the subsequent firing.

Circumstantial evidence: Circumstantial evidence refers to evidence not drawn from direct observation or a fact in issue. In a workers' compensation wrongful termination lawsuit, an excellent example of circumstantial evidence could be if you were supposedly fired because you had too many absences. Still, other workers had the same amount or more absences than you and were not fired as you were. Another example would be if the company failed to follow established protocol when firing you, such as firing you before an investigation took place or establishing a performance improvement plan. 

Sometimes all you will have is circumstantial evidence, as most employers are not foolish enough to lay out their plans in writing. However, a great deal of circumstantial evidence can be very powerful in the hands of an attorney with experience in wrongful termination lawsuits.
 

If you are worried about what to do if you are fired for retaliation, you may already have lost your job, or you may be looking at the writing on the wall. You've noticed a change in your relationship with your superiors and are just waiting for the hammer to fall. However, right now, if you're still employed, you're in a great position to gather documentation to protect yourself. 

Start a paper trail - Keep a record of important work-related milestones like raises, pay decreases, performance reviews, promotions, demotions, and any disciplinary actions. Make sure to note dates, locations, witnesses, and anyone involved in any of these actions. While direct evidence is a powerful tool, be sure not to access any documents that are not available to you because of policy. Ill-gotten evidence rarely helps you in a lawsuit and may even get you in legal trouble of your own.

Request a copy of your personnel file - If possible, get your hands on your own personnel file and make a copy of all important sections like performance reviews and reports. Mail the documents to yourself via Certified Mail and don't open the letter. As long as it's sealed, the courts will accept this as time-stamped evidence in case you are concerned that your employer will doctor the evidence after firing you. If an employer tampers with evidence to prove just cause for firing you, this can be explosive in the courtroom and almost certainly will prove your case.

Make copies of your paycheck stubs - You can usually get copies of your paycheck stubs by contacting your employer's human resources or payroll department. This will be helpful to establish damages for unpaid wages or back pay, and the court will be able to understand your record of compensation.  

Get a copy of the employee handbook - An employee handbook is considered a contract by the courts. If the employer's actions surrounding your firing deviate from established company policies, this is extraordinary evidence in your favor.

Get a copy of your contract- If you signed a contract when hired, get a copy of this for your records.

Get a copy of your collective bargaining agreement - If you're a member of a union, you should retain a copy for your records as well.

It can be devastating when you get terminated for exercising your rights or refusing to engage in known illegal behaviors. While it's an emotional time, now is the moment when you need to continue your documentation efforts.

Write down the timeline - Document everything that occurred before and after receiving notice of your termination. Record the names of all parties involved as these people may be called as witnesses during the trial.

Keep copies of your termination notice-  Keep a copy of your termination letter or print off a copy if you received it through your work's email. 

Ask for a written explanation for your termination - If there is no explanation in your termination notice, request a formal written explanation outlining why you were fired. For example, you can send an email to your boss saying, "I am being fired for XYZ, is that correct?"

Speak with coworkers - Although it can be awkward, if you have close contacts at your work that are willing to speak to you about the incident, their testimony can be invaluable. For example, if a coworker overheard evidence that the firing was retaliatory in nature. Also, ask if they've seen any pattern evidence, like other coworkers being fired shortly after being injured on the job. Or, if they know of other coworkers that were not fired for the same "shortcomings," you are purportedly "guilty" of what led to your termination.

Workers' compensation is designed to help employees that have been hurt on the job. Still, some employers view a workers' comp claim as a threat to their bottom line and retaliate against the employee. Here are some examples you may have experienced before getting fired.

• Being demoted
• Denial of a rightful promotion
• Layoffs
• Denial of overtime
• Threats or intimidation
• Reduction in pay or hours
• Unfavorable changes to your work schedule 
• Unwarranted scrutiny by supervisors
• Fabricated disciplinary warnings

Of course, the most devastating example of worker's comp retaliation is termination and is illegal. Filing for workers' compensation does not warrant any of the actions above.

Whistleblower retaliation

If you were fired for retaliation after exposing illegal activity at your workplace, you have rights under the law. An employer may not fire an employee for whistleblowing on certain illegal activities. Whistleblower laws are enforced by OSHA and protect employees from retaliation for reporting violations in the following business areas:

• Health
• Airline
• Commercial motor carriers
• Consumer products
• Environmental
• Financial reform
• Food safety
• Health insurance reform
• Motor vehicle safety
• Nuclear
• Pipeline
• Public transportation agency
• Railroad
• Maritime
• Securities
• Tax
• Antitrust laws
• Anti-money laundering laws

Suppose you're ready to file a whistleblower complaint. In that case, our lawyers can represent you in your dealings with OSHA and your employer. Any formal complaint with government agencies will require precise and timely communication to ensure a favorable outcome. While you're not required to have a lawyer represent you, an experienced attorney can ensure no crucial steps are missed and help you present a strong case to win a settlement.
 

As with any kind of lawsuit, the damages you can expect will depend on many circumstances and the facts of the case. Generally speaking, a wrongfully fired employee can ask for the following:

Back pay - The wages and benefits that were lost due to wrongful termination

Reinstatement to your job -  You can ask to be reinstated to your position if that's practical

Front pay- If reinstatement is not an option, you can ask for front pay, which is the money awarded for the lost compensation that occurs while you secure a new job.

Out-of-pocket expenses - Any expenses incurred due to your wrongful termination, such as the cost of searching for new employment

Pain and suffering - In some instances, you may be able to be compensated for the mental anguish you experienced due to the retaliatory firing. 

Punitive damages -  Some cases may warrant punitive damages if the employer's actions were particularly appalling.  
 

Lots of law firms talk a big game when it comes to their successes. However, at Morgan & Morgan, we literally publish our successful cases, and we have tens of thousands of them. We're so confident in our services that we don't charge a fee unless we win your case. That means you have no upfront expenses to fight for your rights and receive compensation for your wrongful termination claim. 

We've been working for the people for over 35 years, and in that time we've won billions in compensation for our clients. You don't have to accept your fate if you feel a former employer has wronged you. Allow us to examine the evidence with a free, no-risk case evaluation, and let's see if we can get you on the path to justice.