From our initial consultations with our clients, the question of retaliatory firing tends to arise the majority of the time. Generally, an employer cannot fire an employee for filing a Workers’ Compensation claim. Under the North Carolina Retaliatory Employment Discrimination Act (REDA), an employer is prohibited from firing or taking adverse employment action against an employee for filing a Workers’ Compensation claim.
Adverse Employment Actions
Adverse employment actions are situations where an employer might use certain illegal tactics to punish the employee. Some examples are: docking an employee’s pay, withholding vacation time, or refusing to schedule the employee for work. If you believe that your employer has violated the REDA, it is important that you contact the North Carolina Department of Labor at 1-800-NC-LABOR (625-2267). It is important to note that any retaliatory action taken against you must be reported to the Department of Labor within 180 days of the actions.
However, in determining whether an employer has violated the REDA, each situation is evaluated on a case-by-case basis. This means that in order to prove violation of the REDA, an employee must have evidence of illegal behavior on the employer’s part. Unfortunately, this is not always easy due to the fact that North Carolina is a Right to Work state, which means employers have a large amount of discretion in how and why they fire their employees. As such, it is not hard for an employer to find another valid reason to fire an employee if the need arises. Since many employers know how to mask their actions in order to avoid running afoul of the REDA, it can be extremely hard for an employee to prove that their termination was based on violations of the REDA and not other valid grounds.
Lawful Firing of Employees
However, just because the REDA prohibits unlawful termination and/or adverse employment action by the employer, it does not mean the employer cannot lawfully terminate an employee. An example of this is if the worker cannot return to work due to the injury. In this situation, the employer is allowed to terminate the employee in order to find another individual who is able to work. Any worker that is fired through this process is also unable to receive any of compensation for fringe benefits like lost health care. However, this action is not allowed if the worker falls under the protection of the Family and Medical Leave Act (FMLA). The FMLA protects certain categories of workers from termination for up to a 12-week period.
If you or someone you know has been fired due to being injured while at work, you should Contact Us for a free consultation. By contacting an experienced Worker’s Compensation attorney, you will receive valuable legal advice and an experienced guide through the complex Worker’s Compensation process.
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James Minick is a criminal defense attorney in Asheville, NC and is the owner of Minick Law, P.C.