Helpful Tips for Employers in Preventing an Employee From Making a Successful Retaliation Claim in Nebraska

In order to minimize its exposure to successful retaliation claims, an employer should focus on timing, consistency, and documentation.

Timing – the shorter the period of time between an employer’s discovery that an employee is making a workers’ compensation claim and the employer terminating that employee, the greater the employer’s exposure to a successful retaliation claim.  In short, the timing of the termination in this situation might be perceived as evidence of an employer’s retaliation against the employee for making a workers’ compensation claim, even if in reality the employer had a legitimate non-discriminatory reason for the termination.  If possible, it would be wise for an employer in this situation to allow a period of time to pass between the workers’ compensation claim and the termination.

Consistency – another key component to defeating a claim for retaliation is for the employer to demonstrate that it consistently applies the same rules and decision making processes to all employees.  The erratic application of rules and processes may support a retaliation claim in this context because an employee in this situation will argue that such inconsistent application of workplace rules proves that she is being treated differently or punished by the employer for making a workers’ compensation claim.  However, an employer can protect itself from an argument in the retaliation context by applying the same workplace rules and procedures to all employees.

Documentation – documentation is critical in an employer’s effort to convince a jury that the demotion or termination was based upon legitimate non-discriminatory reasons rather than the fact that the employee filed a claim for workers’ compensation benefits.  Specifically, documentation of an employee’s specific workplace rule violations, an employee’s performance problems, excessive employee absences, or any additional factors that support the decision to terminate the employee are critical in proving a legitimate non-discriminatory reason for the termination.  It is important to understand that documentation must be consistently performed.  This means that all rules violations and performance problems must be documented for all employees at all times, not just for “problem” employees.

For more information regarding retaliation claims in the workers’ compensation context, please contact Robert Seybert  or any of the other workers’ compensation attorneys at rseybert@baylorevnen.com or (402) 475-1075.