What Can I Do If My Employer Retaliates Against Me Because of My Worker’s Compensation Claim?
Many workers who suffer injuries while at work are afraid to report their injury or to file a claim because they are afraid of getting fired. Many workers who witness a co-worker get injured are afraid to testify because they are fear getting fired. Section 41-1-80 of the South Carolina Code prohibits retaliation against an employee who files a workers’ compensation claim or testifies at a workers’ compensation hearing. An employer that violates this law can be held liable in a civil law suit for lost wages and an employee who is fired can be ordered reinstated to their former position. To be honest, however, there are several practical problems with this law.
A civil lawsuit is expensive and can take a long time
In order to file a civil lawsuit you have to hire a lawyer. If you already have a lawyer representing you for your workers compensation case, they may be willing to file a civil lawsuit for you. If not, a lawyer may be willing to represent you on a contingency fee basis. Unfortunately, too many lawyers will not take these cases because they do not care about preserving the workers’ compensation system and do not see a big recovery at the end of the case. Then there are costs involved with filing a civil suit. It now costs $150.00 to file a case in the Court of Common Pleas and $80.00 to file a case in the Small Claims Court. It takes about 1 ½ years to get a case up for trial in the Court of Common Pleas and there are addition costs in the Court of Common including service of process, depositions and mediation. A case can be heard in the Small Claims Court in 6 to 9 months, the costs are less, but your recovery is limited to $7,500.00. Few people can afford to wait while the case runs its course and will be forced to find another job. This will reduce the lost wage damages you can recover if you win. By the time its all said and done there may not be any money left to compensate you for the wages you lost.
The burden is upon you to prove you were not fired for a legitimate reason
If the cost and delay of a civil suit are not enough to deter you, Section 41-1-80 of the South Carolina Code goes on to say the burden of proof is upon you to prove you were fired in retaliation for filing a workers’ compensation claim or testifying in a workers compensation hearing. Few employers will say you are being fired for filing a workers’ compensation case, therefore you will be left trying to prove your case by circumstantial evidence. The law goes further and says the employer can claim you were fired for some other reason such as being late for work, being intoxicated at work, destroying company property, disorderly conduct, embezzlement or theft. These are pretty clear reasons and require evidence you did something wrong. The list of reasons you can be fired for goes on to include failing to meet work standards or violating company policy. The employer can come up with almost any reason for firing you outside of retaliation for your workers’ compensation claim or testifying at a hearing. What’s more the statute gives the employer a catch all defense by providing the fact that you were fired while receiving compensation for total disability can in no way be considered a violation of this section.
There is a special time limit to file your civil lawsuit
While normally you have 3 years to file a lawsuit, the law gives the employer another break by requiring that any lawsuit for retaliatory discharge be filed within 1 year. This creates a trap for the unwary that can result in the injured worker losing the right to seek compensation for lost wages or reinstatement when they have been retaliated against.
While difficult, it does not mean you should stop fighting for your rights
It is never easy, fast or inexpensive to fight for your rights. Unscrupulous employers and insurance companies are counting on you to give up and surrender your rights. If you do not stand up for your rights, they will continue to illegally retaliate against injured workers. If you will not testify for an injured co-worker they can be denied needed medical care and compensation benefits to support their family. The best way to prevent retaliation is to have an experienced attorney fighting for you and protecting your rights. The experienced workers’ compensation attorneys at the Steinberg Law Firm will do just that. If you have been threatened for offering to testify for one of our clients in a workers’ compensation case, contact us immediately so we protect our client and your rights.
Having the right workers’ compensation lawyers fighting to protect your rights helps keep you and your family financially secure during a highly stressful time. The workers’ compensation attorneys at the Steinberg Law Firm have handled thousands of workers’ compensation cases and are ready, willing and able to help you get the benefits you are entitled to. For a free initial consultation to review of your case, call us today at (843) 720-2800 or contact us online at www.steinberglawfirm.com.
David T. Pearlman Has Been Nominated and Accepted as a 2019 AIOPIA’S 10 Best in South Carolina For Client Satisfaction
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