Retaliatory discharge in Workers Compensation cases
Will I be fired? What is retaliatory discharge?
In our topic section called "Will I be fired?", we explained how common it is for a worker to contact us and explain that they were injured, and their employer has already started taking care of the workers compensation case. The worker often tells us that that their employer has acted immediately and has contacted the insurance company, who has immediately jumped into action. The insurance company then assures the worker that everything would be great and that they will not only pay for medical treatment, but even pay for most of their lost time. The injured worker tells us that they are very happy with how quickly the employer is handling the case and how nice everyone is. If you haven’t yet read our topic called “Who’s on my side?", take a minute to read it, as we explain the real reasons why everyone is being so nice.
The surprising answer is that your job may actually be MORE secure (not less), once you have hired a workers compensation lawyer. Here is why:
In Illinois, except for a small percentage of workers, everyone is considered an “at will" employee. That means that you can be fired at any minute, for a good reason or for no reason at all. If your boss doesn’t like how you combed your hair that day and fires you, it’s tough luck. As long as the reason is not discriminatory, you will not likely be able to sue your employer over the firing.
Now consider this. You're a valued employee, but you’re injured. You can’t do what you were hired to do because of your job injury, or you’re going to be off of work for a long time. Your boss needs the job done, and your inability to do the job is affecting the company. If they just fire you now, they can hire someone else who is not injured.
But perhaps you've heard about “Retaliatory Discharge", which is a type of lawsuit that you can bring against an employer after you’re been fired for exercising your legal right to claim workers compensation. You may ask, won’t my employer be hesitant to fire me because they know I will sue them for retaliatory discharge if they do so? The answer depends mostly on this: Have you filed a workers compensation claim? If you have, then they are less likely to fire you. If you have not, then you are still in danger of being fired.
You might be thinking that your employer or their insurance company has already filed the workers’ compensation claim for you. After all, they are being so nice in making payments and such. Well, that would be a mistake to assume this, because your employer and insurance company will almost NEVER file this vital document to protect your rights.