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Retaliation for Workplace Injuries on the Rise

About 30% of our California state-wide employment practice is representing industrially-injured workers who are not allowed to return to work or are simply fired under the guise of “caused an accident” when they are injured on the job. Now, we see in the Wall Street Journal that this is a nation-wide problem. One of our advocates in this battle to protect injured workers is the US Occupational Safety and Health Administration. They are reporting that too many employers are not reporting injuries and they have reminded these employers (many in California) that federal law bars them from retaliation for reporting injuries. (A couple of new cases have highlighted the differences in federal and California state law for sustaining a claim of retaliation. We will be reporting on these cases in a future blog and for now, the lesson may be for California employees to consider obtaining federal Equal Employment Opportunity Commission E right to sue letters.

Under the guise of “protecting your bonus”, many large employers discourage injuries as bonuses are based on “injury free” workdays. This is especially true in infrastructure and the construction industry.Another survey found in 2011 that only about 47% of work related injuries were reported in the Midwest.   These types of methods to avoid reporting injuries (including sending the worker to the nurse or first aid, or just paying for their own private doctor’s visit) have resulted in the number of reportable accidents dropping from 2.6 per 100 full time workers in 2003 to 1.8 in 2011. (OSHA data). Unscrupulous employers are known to blame workers for accidents caused by unsafe equipment.  At one company the WSJ reports that if someone is injured, the associates are no longer eligible for a bingo game and prizes. . These are designed to create peer pressure to discourage employees.

To be sure, some of the drop in rates of work comp injuries (and subsequent workplace discrimination claims) can be due to safer working conditions and restrictions in states like California on who and for what injuries a work comp claim can be filed.  A benefit to the corporate employers has been a drop in the premium rate for workers’ coverage. From $2.67 per $100 of payroll in 1994, the cost is now $1.79.

There has been concern among Congress’ members that workplace injuries are under reported, in part because employers are under reporting injuries and not reporting exposure cases, such as to harmful chemicals where the injury is not immediately apparent. In a recent case, OSHA fined a railroad (Union Pacific Railroad Co) $390,000 for allegedly firing a conductor who reported that an engineer had hurt his elbow on a steel armrest that had no padding. The railroad is appealing.

To summarize, you should insist on the right to report any workplace injuries, promptly report them, and get medical help from a workman’s compensation doctor. The company has the right to provide treatment for the first 30 days. We represent California employees who are injured in the workplace and suffer adverse consequences such as termination, failure to accommodate, discrimination, and failure to have an interactive talk or dialog regarding available jobs.