By: Storrs Downey, Capital Member
Two recent jury verdicts involving workers who claimed retaliatory discharge remind us of the costly exposure employers might face when they terminate an employee who was injured at work.
In January 2016, a Cook County jury awarded an injured worker $2.6 million, including $2.5 million in punitive damages against his former employer, Dominick’s. Francek v. Safeway, 14L9691. The former worker sued Dominick’s alleging that after injuring his shoulder at work in May 2015 and January 2006, he was fired for subsequent alleged “no call/no show” absences. The Plaintiff’s treating physician determined that he should remain off work, but an independent medical doctor, who examined him at Dominick’s request, determined that he could return to work. The plaintiff’s supervisor altered the existing absence codes in plaintiff’s attendance records from “injured at work” to “no call no show.” After his third such absence, he was terminated pursuant to the company’s attendance policy. Plaintiff argued he was never notified of this company change in designation of his absences or aware of its impact on his employment status. Pursuant to his collective bargaining agreement, he argued that he should have received a verbal warning before termination. He also argued that there was no written policy that an injured worker was required to continue notifying the company of ongoing absences when his doctor said he could not work. Plaintiff also argued that his employer used a deficient and conflicting medical opinion as the sole basis to terminate him and he was fired on a false pretense. The jury agreed with the plaintiff and concluded that Dominick’s fired him in retaliation for filing a workers’ compensation claim.
We also refer you to another Illinois retaliatory discharge case that we previously reported on, Holland v. Schwan’s Home Service, Inc., 992 N.E.2d 43 (Ill. 2013), in which the Appellate Court affirmed a jury verdict of $4.26 million for an injured worker who was terminated after not applying for a specifically created position following his work accident. To read more, Click Here.
Similarly, an Indiana jury in Elkhart County held in favor of a machine operator on a retaliatory discharge claim and awarded him $412,680, including $75,000 in punitive damages in Shoun v. Best Formed Plastics, LLC, 20D04-1302-PL-45 (2/21/15). (The Indiana Appellate Court recently affirmed the jury’s verdict of Best Formed Plastics, LLC v. Shoun, 20A3-1506-PL-65 (2/16/16). The plaintiff sustained a rotator cuff injury in March 2012. He returned to restricted work in August 2012, but was laid off six weeks later in September 2012. Thereafter, plaintiff brought a civil lawsuit alleging retaliatory discharge because of his workers’ compensation claim. Five days after he filed civil suit, an officer of the employer and the owner’s wife posted a message on Facebook: “Isn’t [sic] amazing how Jimmy (co-owner) experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us. Love for everyone to hear the real truth. What a loser!”
The employer argued that plaintiff was not fired, but simply laid off due to a downturn in sales and with the understanding he would be recalled if sales picked up. They never contacted him about any recall, but argued he abandoned his job.
In seemingly conflicting testimony, the employer also said plaintiff was fired because of two disciplinary incidents in late August 2012 (refusing to clean his work area and getting angry when asked to increase his quota of production one shift) after he had resumed working.
1. Employers should generally not alter attendance records to change the designation for an injured worker’s absences from a work injury to unexcused absence.
2. Even if it might be reasonable to alter or modify attendance records as occurred here, the employer should provide advanced notice to the employee so they are aware and have the opportunity to challenge it and/or take other action as to avoid losing their job.
3. If the Workers’ Compensation Board finds that plaintiff’s work accident was legitimate and they could not work, it is very risky for an employer to terminate an employee who does not work based on his own doctor’s instructions not to work.
4. An employer should never put in writing, verbally express verbally to anyone (besides its attorneys) or post comments on social media about the nature of an employee’s alleged work injury (in Shoun, the jury also awarded plaintiff $25,000 for invasion of privacy by his employer!)
5. Make sure that when you are going to fire an employee for work rule violations – particularly if less than a month after they have resumed working – that such violations sufficiently egregious a large volume that it would be commonsense to expect such an employee to be fired.
6. Consult with your workers’ compensation attorney or carrier and employment attorney before firing an employee who has a pending or recent workers’ compensation claim or injury.