Of respondents who experienced a serious injury on the job, only 8 percent filed a workers’ compensation claim. When workers did tell their employer about the injury, 50 percent experienced an illegal employer reaction—including firing the worker, calling immigration authorities, or instructing the worker not to file for workers’ compensation.

There are a couple interesting things to note.  My first observation: this study suggests an answer to a common question  – “how could an employer be stupid enough to retaliate against me for filing a workers’ comp claim?”  If retaliation for filing a workers’ compensation claim (actual or perceived) can prevent 96 percent of serious injury comp claims, then instilling fear in injured workers may well enhance an employer’s bottom line.  That’s a scary thought.

My second observation:  vigorous enforcement of workers’ compensation retaliation claims among low-wage earners is VERY important.  I don’t have any data to back up my hypothesis, but I’d be willing to bet that serious work-related injuries are most common among low-wage earners (manual labor, repetitive work, factories, farms, etc.).  If 96% of injured workers are not filing claims, then the workers’ compensation system is broken.

Finally, I have some questions about this study.  I would love to know more about method and details of this study.  I would enjoy seeing how the respondents were selected and how the survey questions were drafted.  Like any report of survey results, I would encourage readers to think critically about what these numbers really mean.

My office routinely reviews EEOC and BOLI files.  In most cases, I suggest having an attorney review the status of an administrative investigation before any findings are issued.  There are some cases where it is advantageous to close the administrative investigation before the agency has a chance to finalize its findings.  This is a rather complex analysis and is something that needs to be considered on a case-by-case basis.

In the lawsuit I mentioned above, which was filed against a Kansas-based staffing agency called Spencer Reed Group, a 55-year-old Caucasian female employee was subjected to differential treatment by her younger male African American supervisor.  The employee submitted a complaint and was fired one day later.

There is not enough information to remark on the strength of the employee’s actual discrimination claims.  However, it appears that retaliation is a real problem for the employer in this case.  Even if the employee cannot prove she was subject to discrimination, there is no getting around the fact that the employer fired the employee within 24 hours of receiving a complaint.  The timing of the discharge is very problematic and is likely to overshadow whatever legitimate, non-discriminatory ground for termination the employer will allege.

This case is also a great example of why the new Oregon whistleblowing law is so important.  H.B. 3162, which was signed by the governor on June 24, 2009, prohibits retaliation against employees for good faith reports of information an employees believes to be evidence of unlawful activity.  (Read bill here).  The law applies to actions filed on or after January 1, 2010, which means that retaliatory conduct occurring any time after January 1, 2009 could theoretically be subject to this new law.   Retaliation has been prohibited in various forms under the Oregon common-law for some time.  See e.g., Galenbeck v. Newman & Newman, Inc., 2004 US Dist LEXIS 9249 at **21-25 (D. Or. May 14, 2004); McGanty v. Staudenraus, 321 Or. 532 (1995); Goodlette v. LTM, Inc., 128 Or. App. 62,65 (1994).  However, the new law will alleviate the need for employees to navigate the nuances of a wrongful discharge claim.

If you are facing a serious issue regarding workplace safety, it is always best to contact an attorney.  There is no substitute for good advice.

1. Complaints to the employer should be in writing, if at all. A written record of a complaint helps you and other employees.  If your employer retaliates against you because you reported what you reasonably believe to be a safety violation, a written complaint provides solid evidence of your report.  Likewise, if the employer refuses to take corrective action, the employer was on notice of the unsafe condition.
2. Consider writing directly to the Department of Consumer and Business Services. ORS Chapter 654 gives power to the Department of Consumer and Business Services to investigate workplace safety issues.  A complaint form and more information are located here.

For those of you who have been fired or laid off after filing workers’ compensation claims, this study is evidence that you are probably not alone.  26% of survey respondents reported that they were fired or laid off within 1 week of filing a claim!  However, the study does not (and acknowledges it cannot) conclude that the firings and layoffs were because of the workers’ compensation claims.  But take a look at the fact that 25% of those fired or laid off after a claim report that their employers discouraged them from filing a claim.  And, even more shocking, 12% of those not fired or laid off after a claim reported similar pressure.  That means that more than 1 out of 10 respondents’ employers discouraged comp claims.

***Begin Quoted Text (Original Text Here)**

Executive Summary

Whether or not an employee is able to return to work after sustaining a job-related injury is often a test of the effectiveness of an employer’s return-to-work program and the state’s workers’ compensation benefits structure as a whole. Although several research projects have examined the factors associated with an injured worker’s ability to return to work, none have specifically looked at whether an injured worker in fact has a job to which to return.

The purpose of this project is to examine the experiences of injured workers who were fired or laid off after sustaining a work-related injury. In particular, this report looks at the percentage of injured workers who were fired or laid off at some point after their injury, and how being fired or laid off after an injury impacts an injured worker’s ability to return to work.

Key findings are as follows:

Statewide Rates of Injured Workers Who Were Fired/Laid Off After a Work-Related Injury

• Overall, 21 percent of injured workers surveyed reported that they were either fired or laid off after their work-related injury. (It is important to note that this does not mean that these injured workers were fired or laid off as a result of their injuries, only that they were fired or laid off at some point after they were injured.)
• The most common reasons given to injured workers by their employers (according to the workers) for why they were fired/laid off included: the employer said the injured worker was physically unable to perform any of the job duties; because they filed a workers’ compensation claim; some other reason (e.g., company was reorganizing); or business was slow.
• When injured workers were asked to give their own opinion as to why they were fired or laid off after their injury, most believed it was because they filed a workers’ compensation claim; because their doctor said that they couldn’t go back to work; or because their employers did not believe that their injury was work-related.
• Most injured workers (52 percent) were fired more than six months after they reported their injury, while most laid-off workers (64 percent) were let go within six months of reporting their injury to their employer. Interestingly, over one-quarter (26 percent) of laid-off workers were let go from their jobs within one week of reporting their injury to their employer.

Comparison of Injured Workers Who Were Fired/Laid Off with Those Who Were Never Fired/Laid Off After an Injury

In general, there were vast differences between injured workers who were and were not fired or laid off after an injury.

• A much higher percentage of injured workers who were never fired or laid off are currently employed (82 percent), compared to workers who have been fired or laid off after their injury (49 percent).
• Understandably, there were definite differences in how injured workers who were and were not fired/laid off perceived their employer’s support after their injury.
• Overall, the majority of injured workers who were never fired or laid off (66 percent) reported that their employer was either “very” or “extremely” supportive of their efforts to return to work, compared to only 19 percent of injured workers who were fired or laid off after their injury.
• One-quarter (25 percent) of injured workers who were fired or laid off after their injury reported that their employer/supervisor tried to discourage them from filing a workers’ compensation claim, compared to 12 percent of injured workers who were never fired or laid off.
• In general, injured workers who were fired or laid off after their injury tended to receive more financial assistance outside of workers’ compensation benefits (such as Social Security Disability Income or food stamps) and encounter more personal hardships (such as depleting their savings or losing their home) than injured workers who were never fired or laid off.

Factors Associated with Being Fired/Laid Off After an Injury

• Injured workers were more likely to be fired after an injury if: their employers tried to discourage them from filing a workers’ compensation claim; they worked in a physically strenuous job (such as manual labor); they had worked less than one year for their employer; or they were male.
• Injured workers were less likely to be fired after an injury if they were married.
• Injured workers were more likely to be laid off after their injury if: their employers tried to discourage them from filing a workers’ compensation claim; they had attorney representation; they were professional managerial workers; they resided in East or West Texas; they had worked less than one year for their employer; or they were male.

Factors Affecting Return to Work

• Injured workers were more likely to be currently employed if: they worked in a physically strenuous job (such as manual labor); they were male; their employer provided light duty after the injury; or their employer provided on-the-job retraining after the injury.
• It is interesting to note that manual labor is associated both with being fired/laid off and with successful return to work. Possible explanations include shorter duration of some manual labor jobs; plentiful number of manual labor jobs; and/or transient nature of many types of manual labor employment.
• Injured workers were less likely to be currently employed if: they had a back injury; they had attorney representation; their employers tried to discourage them from filing a workers’ compensation claim; they worked for a small employer when they were injured; or they were laid off after their injury.

One important note: based solely on the survey responses of workers who were injured in 1996, this study cannot and does not conclude that these injured workers were fired or laid off because they filed workers’ compensation claims. Indeed, workers are let go for a variety of reasons that do not stem from their injuries. However, employers need to be aware that the choice to terminate leads to additional administrative services that add to claim costs, as well as cost shifting to other social support programs. As a result, these injured workers often are involved in more workers’ compensation disputes; receive more financial assistance outside of workers’ compensation benefits (e.g., food stamps, Social Security Disability Income, etc.) and encounter more personal hardships than injured workers who were able to go back to work with their former employer.

Employers who emphasize return-to-work programs (such as job modification and retraining) not only retain experienced workers but often are able to reduce claim costs as well. Some insurance carriers (though not all) provide discounts to employers who implement safety or return-to-work programs. Although continuity of employment remains the choice of the employer in Texas, there are many benefits — for the employer, the worker, and the system as a whole — derived from maintaining the employment relationship following a work-related injury.

That said, there are things an employment attorney will consider in every case that involves a disability.  As I get the time to write about each of these topics, I will provide links below.  Here are some common considerations under the Oregon disability laws:

1. Do the disability statutes apply to this employer?
2. Is the employee “disabled?”
3. Can the employee perform essential job duties with or without reasonable accommodations?
4. Has the employee notified the employer of a disability and/or requested accommodations?
5. Are the requested accommodations reasonable?
6. Has the employer engaged in an interactive process to accommodate the employee’s disability?
7. Has the employer discriminated or retaliated against the employee?
8. How has this negatively affected the employee?

This list is far from exhaustive, but it should give you an idea of some questions involved in evaluating possible disability issues that arise during the employment relationship.

The main reason is that it is easier to prove retaliation than discrimination. Managers look at the fact that the employee was fired only days or weeks after filing a workers’ compensation claim or an EEO charge. Retaliation cases are easy to prove when this short window of timing occurs between the two events. There is no such shortcut of proof in discrimination cases. Juries seem more inclined to believe that someone would retaliate than discriminate based on race, sex or other protected minority-status factors.

***PLEASE NOTE:  The Oregon Whistleblowing Statute was amended effective Jan. 1, 2010.  This article is outdated.

Employment whistleblowing provisions are scattered throughout Oregon statutory and common law.  Likewise, your employment contract or employment policies may protect you from disclosing an employer’s wrongful conduct.  However, the main whistleblowing statute is codified at ORS 659A.230(1), which reads:

It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported criminal activity by any person, has in good faith caused a complainant’s information or complaint to be filed against any person, has in good faith cooperated with any law enforcement agency conducting a criminal investigation, has in good faith brought a civil proceeding against an employer or has testified in good faith at a civil proceeding or criminal trial.

This statute protects reports of criminal activity and participation in civil proceedings against an employer.

ORS 659A.040, reads (at the time of this post):

It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in [the workers' compensation law] or has given testimony under the provisions of those laws.

If you believe that you have been fired or otherwise discriminated against because you invoked the workers’ compensation law, I would strongly recommend that you contact a lawyer right away.

I disagree wholeheartedly with Lawrence Z. Lorber’s quote that “[p]eople take legal action out of desperation as it becomes more difficult to find new employment”.  Instead, I think people take legal action because they feel a sense of injustice for the way they were treated and want to investigate whether they may have been subject to unlawful employment practices.  From my perspective as a plaintiff’s lawyer, I would say, “companies take illegal actions out of desperation as it becomes more difficult for them to fulfill their moral obligations to employees.”

This all said, I still believe that plaintiff and defense attorneys need to be particularly mindful of the realities of the cases they are handling.  Cases will not be won or lost on the current status of the economy.  Instead, cases will be won or lost depending on whether the employer violated applicable employment laws during the statutory period.