Workers’ compensation is a form of insurance that pays for wage replacement and medical benefits to employees injured on the job or in the course of employment. Texas is a unique state that makes workers’ compensation voluntary for employers. For that reason, most private employers in Texas may choose to affirmatively “opt-out” of the state workers’ compensation system. Those who “opt-in” are called “subscribers” and those who “opt-out” are called “non-subscribers.”
In Texas, workers’ compensation retaliation is governed by Chapter 451 of the Texas Labor Code. Thus, a claim for retaliation is commonly known as a Chapter 451 claim. Chapter 451 makes it illegal for employers to discharge or in any other manner discriminate against an employee because the employee has:
(1) filed a workers’ compensation claim in good faith;
(2) hired a lawyer to represent the employee in a claim;
(3) instituted or caused to be instituted in good faith a proceeding under the Texas Workers’ Compensation Act; or
(4) testified or is about to testify in a proceeding under the Act.
Some courts have held that it is not necessary for an employee to have actually filed a workers’ compensation claim to invoke the law’s protection. An employee needs to only take steps toward instituting a workers’ compensation proceeding to be protected. For example, informing one’s employer of an on-the-job injury could sufficiently “institute” a workers’ compensation proceeding within the meaning of the law.
Other courts have held that a hostile work environment can, under the right set of circumstances, constitute “other discrimination” within the meaning of Chapter 451. A hostile work environment is one so severe and pervasive that it destroys an employee’s opportunity to succeed in the workplace. To be sufficiently severe or pervasive, the employer’s conduct must be extensive, long-lasting, unredressed, and uninhibited and permeate the employee’s work environment.
The law only covers employees of “subscribing” employers. This means the law does not cover non-employees, such as independent contractors or job applicants. This also means a claim for workers’ compensation retaliation cannot be brought against an employer who has opted-out of the workers’ compensation system.
A retaliation claim under Chapter 451 must be filed within two years after the cause of action accrues. A claim “accrues” when the employee receives unequivocal notice of the retaliation or when a reasonable person should have known of the retaliation. Additionally, unlike discrimination and retaliation claims under most other discrimination laws, a workers’ compensation retaliation claim has no administrative exhaustion requirements. This means an employee can immediately file her claim in court, as opposed to having to file with an administrative agency first like the EEOC or the Texas Workforce Commission—Civil Rights Division.
How do you prove a workers’ compensation retaliation claim?
To establish a workers’ compensation retaliation claim, an employee must show that (1) she was discharged or discriminated against in any manner, (2) because she engaged a activity protected by Chapter 451, and (3) that “but for” the employee’s protected activity, the discharge or discrimination would not have occurred.
Employees can prove the causation element of their claim by using direct evidence or circumstantial evidence.
Direct evidence: Direct evidence of retaliation is evidence that, if believed, proves the fact of retaliatory intent without inference or presumption. An example of that is when an employer outright tells an employee that the reason for the termination is because the employee had filed a workers’ compensation claim.
Circumstantial evidence: Courts recognize that direct evidence of discrimination and retaliation is very rare. Employers have become a lot smarter, and rarely do they ever reveal their true motives behind an unlawful termination. Circumstantial evidence is another form of evidence that relies on inferences. In a workers’ compensation retaliation claim, examples of circumstantial evidence that courts have recognized include:
(1) knowledge of the workers’ compensation claim by those making the decision on termination;
(2) expression of a negative attitude toward the employee’s injured condition;
(3) failure to adhere to established company policies;
(4) discriminatory treatment in comparison to similarly situated employees; and
(5) evidence that the stated reason for the discharge was false.
Chapter 451 provides for “reinstatement” and “reasonable damages” as remedies for a workers’ compensation retaliation claim. This means an employee can ask the court to give him his job back or award him damages for lost wages and benefits, mental anguish, and punitive damages.