Retaliatory Discharge

I have handled hundreds of Illinois Workers’ Compensation cases over my career. One question I hear quite often during the initial consultation is: “Can I get fired for filing a Workers’ Compensation claim?” People are concerned – they fear that once the Workers’ Compensation case is filed, their employer may look for reasons to get rid of them.

Those concerns are understandable. Occasionally, some employers do fire workers for filing Workers’ Compensation cases. The employer of course comes up with all kinds of false reasons for the firing – habitual tardiness; unexcused absences or inappropriate behavior. But the real reason is the employer is angry about the Workers’ Compensation case and wants to punish the employee.

So unfortunately, the honest answer to that question is “Yes, some employers do fire employees who file Workers’ Compensation claims.” Thankfully, in my career, the likelihood of termination is less than 10%. But it does sometimes happen. And when it does, the fired employee has a remedy – a lawsuit for retaliatory discharge.

Retaliatory Discharge occurs when an employer fires an employee in retaliation for that employee exercising his or her rights under the Illinois Workers Compensation Act (“the Act”). The employee doesn’t have to have a claim on file – he or she can simply alert the employer that they expect the employer to pay for medical bills relating to an on the job injury. Doing so advises the employer that the employee will be exercising his or her rights under the Act.

The employee has to prove:

  1. He suffered an injury while on the job;
  2. He exercised a right or rights under the Act;
  3. He was then terminated and
  4. The termination was related to his exercise of rights under the Act.

These aren’t easy cases to prove – employers have lawyers too. And employers are smart enough to avoid putting the real reason for a termination in writing. Again, the employer will come up with all kinds of innocent explanations for his actions. It then becomes my job to demonstrate that these innocent explanations are simply cover stories. And that what really occurred is that the employer fired the employee because that employee sought to assert his rights under Illinois Workers Compensation law.

Compensatory damages in these cases include lost wages from the moment of the termination until such time as similar employment is obtained. And, in appropriate circumstances, a judge and or jury may award punitive damages in addition to compensatory damages.

Please contact my Chicago office if you feel you have a case for retaliatory discharge.