Facing Your Fears of Filing a Workers’ Compensation Claim

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Imagine you were just injured on the job and you are thinking about filing a workers’ compensation claim.  The only problem is: you are too scared to file a claim for fear of losing your job.  However, before you prematurely decide your claim is not worth pursuing, you should have a basic understanding of the protections South Carolina law provides to employees.

The General Rule: S.C. Code Ann. § 41-1-80

In general, it is illegal for a South Carolina employer to fire an employee for initiating a workers’ compensation claim.  Specifically, S.C. Code Ann. § 41-1-80 provides in pertinent part:
“No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers’ Compensation Law… or has testified or is about to testify in any such proceeding…”
This means if you initiate a workers’ compensation claim in good faith against your employer, your employer cannot terminate you simply for filing that claim.  However, it should be noted that an employer may still fire you for other reasons.  Accordingly, if you are pursuing a workers’ compensation claim while still employed, you should be on your best behavior and do not give your employer a justifiable reason to terminate you outside of your claim.

What If My Employer Does Fire Me For Filing a Workers’ Compensation Claim Against Him?

Initial burden is on the employee:
If you believe your employer has fired you because you initiated a workers’ compensation claim, you may have a valid retaliatory discharge claim against them.  This type of claim is brought pursuant to S.C. Code Ann. § 41-1-80 and is an equity action that is tried before a court without a jury.  In the case of Hinton v. Designer Ensembles, Inc., the Supreme Court of South Carolina found that in order for a plaintiff to prevail under a workers’ compensation retaliation claim, he must first prove:

  1. He instituted a workers’ compensation proceeding;
  2. The employee’s discharge or demotion; and
  3. A causal connection between the two.

(Citing to Hines v. United Parcel Service, Inc.)
When evaluating a plaintiff’s claim, a court will apply a “determinative factor” test.   Under the determinative factor test, an employee must establish that he would not have been discharged or demoted but for the filing of his workers’ compensation claim.
The burden then shifts to the employer:
If the plaintiff is able to establish these three elements, the burden then shifts to the former employer to articulate a legitimate and justifiable reason for the employee’s termination.
The burden then shifts back to the employee:
Once the employer provides his alleged reason for firing the employee, the employee must then prove to the court that this reason is “pretextual.”  This means showing that the reason an employer offered is simply one that hides their real reason for firing him.  The employee will have to show that instead, the real reason the employer fired the employee was because the employee filed his workers’ compensation claim.   
In the case of Wallace v. Milliken & Co., the Supreme Court of South Carolina held that an employee may meet their burden of persuasion that the employer’s claimed reason was pretextual either directly or indirectly.  Specifically, the court found an employee could either succeed “directly by persuading the court that the discharge was significantly motivated by retaliation for her exercise of statutory rights, or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
For example, an employee may show evidence that he was terminated immediately after he filed his workers’ compensation claim, introduce written communications between himself and his employer relating the termination to the claim, and present evidence discrediting an employer’s proffered reason.  It is important to note here that the courts have held merely proving a termination happened close to the time of filing of the workers’ compensation claim is not enough.  However, in the case of Johnson v. J.P. Stevens & Co., Inc., the Supreme Court of South Carolina stated that when this temporal proximity is combined with other evidence of retaliation, an employee could meet their burden of showing pretext.  Thus, to build a strong claim, an employee should be prepared to present evidence of his satisfactory work performance for the employer and a close temporal relationship between the termination/demotion and the workers’ compensation proceeding.

What Defenses May My Employer Assert?

As touched on above, S.C. Code Ann. § 41-1-80 provides an employer with various affirmative defenses to assert in defense of an employee’s retaliation claim:

  • Wilful or habitual tardiness or absence from work;
  • Being disorderly or intoxicated while at work;
  • Destruction of any of the employer’s property;
  • Failure to meet established employer work standards;
  • Malingering;
  • Embezzlement or larceny of the employer’s property;
  • Violating specific written company policy for which the action is a stated remedy of the violation; and
  • Failure to file a workers’ compensation claim.

An employer has the burden of proving the existence of any affirmative defense they want to present.  However, the employer does not have to establish that there is a causal relationship between their defense and the employee’s termination.

When Do I Have to Bring a Retaliation Claim?

A retaliation claim must be brought within one year.

What Damages Can I Receive If I Show My Employer Fired Me For Initiating a Workers’ Compensation Claim?

S.C. Code Ann. § 41-1-80 limits a former employee’s recoverable damages to the following three categories:

  1. Lost wages that occurred as a result of the violation;
  2. Reinstatement to his former position; and
  3. Actual damages – this means any future earnings and punitive damages are not recoverable.

If you have been injured on the job but you are afraid of being fired for filing a workers’ compensation claim, you should hire a lawyer to help you evaluate the merits of your claim.  The experienced Greenville, South Carolina workers’ compensation lawyers at David R. Price, Jr., P.A. can help you understand your rights and discuss the process and consequences of filing a workers’ compensation claim.  Contact us today for a free case review!   


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