Terminating Employees on Workers’ Compensation
Although workers in New Jersey, Pennsylvania, and other states throughout the country may be fired for legitimate, non-discriminatory reasons, they may not be terminated for collecting or attempting to collect Workers’ Compensation benefits. Employers should be aware of the potential legal consequences of firing an employee who is on Workers’ Compensation.
At-Will vs. Contract Employees
Neither at-will nor contract employees may be terminated in retaliation for their Workers’ Compensation claims. However, at-will employees may be terminated for any or no reason at all, whereas contract employees must typically have the permissible reasons for termination outlined in their contract.
Contracted employees may be more difficult to fire because the reasons for, and methods of, determination are laid out in the contract and must be adhered to. However, although employers are not allowed to terminate employees for simply being on Workers’ Compensation, they may terminate employees who are absent for a specific period of time (usually six months) regardless of the reason, as outlined in their contract.
Employers’ Duties
As an employer, you have certain duties to uphold regarding employees on Workers’ Compensation. Failure to uphold these duties may result in civil and criminal legal liability.
It is also important to note that employees who are terminated while they are on Workers’ Compensation leave may still be eligible to continue receiving benefits until they are medically cleared to return to work.
Full Recovery/MMI
You are required to retain employees receiving Workers’ Compensation until they reach full recovery or maximum medical improvement (MMI). If you cannot accommodate an employee’s work restrictions after he or she has reached MMI, you may then terminate the employee or offer them alternative, light duty work.
Company Policy
You should also consult your personnel policies and employee handbooks to ensure that you are following the proper protocol before firing an employee on Workers’ Compensation. Certain policies may require both verbal counseling and written notice prior to termination, or list possible grounds for termination.
Be sure to follow these policies to the letter, in order to minimize your exposure to civil and criminal liability.
Similar Instances of Misconduct
Similar instances of misconduct should be evaluated to ensure that your behavior is not perceived as discriminatory. For example, if another employee was only issued a warning or demotion for poor work performance, whereas the worker receiving Workers’ Compensation was fired for that same behavior, you may open yourself up to liability. The discipline imposed on a worker who is not receiving Workers’ Compensation should be similar to that imposed on the worker who is.
Timing
It is also important to consider timing when deciding whether to fire an employee who is receiving Workers’ Compensation. If you have a legitimate reason for firing an employee but wait too long after they file their Workers’ Compensation claim to fire them, you may have a difficult time proving that the employee was fired for a reason unrelated to their claim.
FMLA
You must comply with Family and Medical Leave Act (FMLA) requirements. Workers who were employed by you for at least 12 months, and worked at least 1,250 hours, are entitled to up to 12 weeks of unpaid leave for a serious health condition.
Make sure that this time has been exhausted, and that you have complied with the FMLA, prior to terminating an employee receiving Workers’ Compensation on FMLA leave.
For more information on your duties as an employer regarding termination of employees on workers’ compensation, contact an experienced employment attorney at MacMain Leinhauser. Call us at 484-318-7106 or submit an online inquiry form.
Sexual Harassment Tool
The National Academies of Science, Engineering and Medicine (NASEM) recently completed a two-year study on sexual harassment. Although its focus was primarily on the influence of sexual harassment in academia, and its impact on the advancement of women’s careers in the scientific, technical and medical workforces, NASEM’s findings are relevant to many other types of workforces as well.
NASEM gives several recommendations to reduce sexual harassment in the workplace, including one tool that employers are not likely to implement, due to its legal and public interest ramifications.
The Climate Survey: Effective but Underutilized
According to NASEM, the climate survey is promising in terms of its ability to reduce sexual harassment. Implementing the climate survey tool would require employers to regularly survey employees about what types of inappropriate behavior they have witnessed at work. By gaining a clear understanding of the existing climate, and routinely following up with workers, employers can track the effectiveness of their efforts to reduce sexual harassment over time.
Climate surveys would alert employers to existing harassment problems, or ones that could potentially arise in the future. Because most victims of sexual harassment do not report it, reliance upon formal complaints is not sufficient to determine the extent of harassment present in an organization. Climate surveys would also provide employers with valuable information regarding the types of harassment occurring in their organizations, even if there have been no formal complaints filed.
Climate Survey Employer Concerns
In light of the recent “MeToo” movement, many companies are eager to reduce workplace sexual harassment. However, although traditional training programs have proven to be largely ineffective, the climate survey may not be the solution they are looking for.
While it may be effective in terms of reducing workplace sexual harassment, many employers are deterred from utilizing climate surveys because of the potentially damaging public relations and legal implications.
Climate surveys that indicate high levels of harassment may prove harmful to an organization’s reputation if they are publicized. Therefore, many organizations will be hesitant to utilize the tool. Organizations could also open themselves up to liability if they are aware of existing sexual harassment issues, but do not stop them.
Employers must exercise reasonable care to prevent and correct sexual harassment in the workplace. If their training methods are not effective, as indicated by client surveys, they may be held legally liable for any persisting harassing behavior.
Federal and State Sexual Harassment Laws
Employees are protected from workplace sexual harassment by both federal and state laws, including Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act.
The Equal Employment Opportunity Commission (EEOC) is responsible for the enforcement of federal laws pertaining to workplace harassment. They have the authority to investigate charges of discrimination against employers with more than 15 employees.
The Pennsylvania Human Relations Commission (PHRC) is responsible for enforcing state civil rights laws and applies to employers with four or more employees.
Employers may be held liable for all forms of sexual harassment under federal and state law. It is therefore important to seek qualified legal assistance in both the prevention and investigation of workplace sexual harassment.
For more information about how to reduce sexual harassment in your workplace, or for assistance with your sexual harassment claim, contact an experienced employment attorney at MacMain Leinhauser. Call us at 484-318-7106 or submit an online inquiry form.
The Essential Role of an Employment Lawyer
The laws governing the employer-employee relationship are always evolving. Every employer – regardless of the size and scope of their business – can benefit from working with a trusted employment lawyer.
Attorneys who practice in employment law serve a wide range of important functions. They guide and counsel business owners to ensure compliance with local, state, and federal employment laws. They also work with employers to maintain proper procedures on the “front end” that help to prevent potentially costly lawsuits.
Employment Defense Lawyer Services
Lawyers practicing in employment defense provide countless invaluable services. These include:
Corporate Transactions: During large-scale corporate transactions, employment lawyers counsel employers in the separation and retention of employees, compliance with plant closings and mass layoff laws, and enforcement of restrictive covenants.
Employee Relations Counsel: Employment lawyers lead employers in compliance with local, state, and federal employment laws, with the goal of minimizing conflict and litigation. This includes ensuring that clients always operate in accordance with health and safety regulations and wage and hour laws. They can also assist in the preparation of employee handbooks and policies and contracts to confirm they are legally sound.
Employee Training: Employers often defer to legal counsel when training supervisors and other workers on many different workplace issues. They work with employers to prepare workshops and seminars addressing diversity and inclusion, harassment, reasonable accommodations, and proper interviewing and hiring procedures.
Employment Investigations: When an employee is accused of misconduct, any misstep by their employer can jeopardize an investigation and invite a lawsuit. An employment lawyer advises their clients investigating employees suspected of theft, discrimination, substance abuse, workplace violence, and other issues that arise.
Employment Litigation: Litigation is an unfortunate reality for many employers. Attorneys with experience representing clients at trials and appeals in both state and federal courts are best equipped to represent business owners facing discrimination, harassment, unemployment actions. and contract and labor disputes.
Choosing the Right Employment Law Firm
It makes sense for every business owner to establish a good working relationship with a skilled attorney experienced in representing employers in all employment law matters. Your employment lawyer should be in good standing with your state bar association and have a track record of satisfied clients in the private and public sectors.
Putting procedures and training in place is often the key to preventing disruptive litigation. MacMain Leinhauser offers a dedicated Employment and Labor Law Practice, featuring a full range of services for public and private sector employers. Led by Matthew Connell and Brian Leinhauser, our experienced team offers human resource counseling and training, workplace seminars, and representation in labor matters in state and federal courts and before civil rights and human relations commissions in both New Jersey and Pennsylvania.
Let our skilled employment lawyers protect your business and your future. Call 484-318-7106 or contact us online to schedule a consultation. Located in Malvern, we serve clients throughout New Jersey and Pennsylvania.