Refresher – Terminating Or Demoting an Employee With a Potential Worker’s Compensation Claim
In Nebraska, an employee who is discharged in retaliation for asserting rights under the Workers’ Compensation Act can bring a separate cause of action against the employer. Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003). Generally speaking, the essence of a workers’ compensation retaliation claim is an allegation that the employee was terminated, discriminated against, or in some manner treated more harshly because he or she initiated the workers’ compensation claims process. There is a similar cause of action for a demotion in retaliation. See Trosper v. Bag ‘N Save, 273 Neb. 855, 734 N.W.2d 704 (2007).
While there are many factors which the court will consider in determining whether the discharge was in fact retaliatory, perhaps the biggest factor is the timing of the discharge in relation to the employer’s notice of the claim for workers’ compensation. Employers seeking to take adverse employment actions against an employee with a potential workers’ compensation claim should be diligent about ensuring the action is well-documented and based upon job performance irrespective of the alleged workplace accident.