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Workers' Comp Retaliation

Is Workers’ Compensation Retaliation Against the Law?

Suffering an on-the-job injury can be both stressful and frightening for many reasons. Sometimes, the fear and stress revolve around your physical well-being, prognosis, physical limitations, and/or recovery. Other times, the fear and stress is triggered by the financial instability of being out-of-work after being hurt on the job. The last thing any employee needs after suffering a workplace injury is to be retaliated against for pursuing or attempting to pursue a workers’ compensation claim. Despite being against the law, our New Jersey workers’ comp lawyers have helped thousands of employees with retaliation claims. Specifically, the workers’ compensation statute, which requires employers to compensate employees for workplace injuries regardless of proof of fault, also prohibits retaliation against any employee who claims or attempts to claim workers’ compensation benefits or provides testimony in a workers’ compensation case or proceeding. N.J.S.A. 34:15-39.1. In addition to violating the workers’ compensation statute, unlawful retaliation for pursuing a workers’ compensation claim or testifying in a workers’ compensation proceeding may also give rise to a claim of wrongful termination in violation of public policy or what is known in New Jersey as a Pierce claim.

Why Would Employers Retaliate Against Employees Pursuing Workers’ Compensation Claims?

The New Jersey workers comp retaliation attorneys understand that while most employers will not illegally retaliate against employees pursuing workers’ compensation claims, some do. Their motives for retaliating may be as varied as these unscrupulous employers themselves. Generally, however, we have found that the most common reasons that employers lash out against employees with workers’ comp claims is that they want to avoid paying their employees for their injuries, want to cut costs, are angry that their injured employees require accommodations to perform their essential job functions, and/or are upset that workers need time off from work to obtain medical treatment or to recuperate. Regardless of the reason, workers’ compensation retaliation is against the law.

What Does Workers’ Comp Retaliation Look Like?

Unlawful retaliation may take any of the following forms against employees who take or request workers compensation, require accommodations as the result of an on-the-job injury, file a workers’ comp claim, and/or testify in a related proceeding:

  • termination,
  • demotion,
  • denial of bonuses or salary increases,
  • refusal to allow workers to return to work once medically cleared to return,
  • requirement that employees returning to work jump over onerous hurdles before being allowed to return to work,
  • reduction of work hours,
  • denial of promotions,
  • cut in pay,
  • re-assignment to undesirable shifts,
  • assignment of undesirable work or tasks,
  • transfer to geographically undesirable locations, and/or
  • less favorably treatment than before pursuing a workers’ compensation claim, which may involve abusive behavior, yelling, unwarranted and accusatory disagreements about the existence or extent of your injuries.
How Is Workers’ Compensation Proven?

To prove illegal workers’ compensation retaliation, employees needs to show that they either attempted to make or made a claim for workers’ compensation benefits or testified or attempted to testify in a related proceeding and were retaliated against, as described above, for taking those actions. In Galante v. Sandoz, Inc., 192 N.J. Super. 403 (Law Div. 1983), the Appellate Division made clear that to be successful on a workers’ compensation retaliation claim, employees need not show that they actually filed a claim petition. Instead, taking steps to begin the process of filing a claim petition by, for example, putting employers on notice of the injury and asking about the procedure to have medical bills paid is sufficient to constitute a claim or attempt to make a claim for workers’ compensation benefits within the meaning of the workers’ anti-retaliation provisions of the workers’ compensation act, N.J.S.A. 34:15-39.1.

What Should I Do If I Believe I am Being Retaliated Against for Filing A Workers’ Compensation Claim or Testifying in a Workers’ Comp. Proceeding?

If you believe that you are being retaliated against for filing or attempting to file a workers’ compensation claim or testifying or attempting to testify in a workers’ compensation hearing or proceeding, you should immediately call New Jersey’s workers compensation retaliation attorneys Lenzo & Reis at (973) 845-9922 or e-mail us by clicking here. We have represented thousands of New Jersey employees in various retaliation claims including, but not limited to workers’ compensation retaliation claims.

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