Articles Posted in Responding to Retaliatory Actions

One of the benefits of having an experienced legal team handle your North Carolina workers’ compensation claim is that any acts of retaliation taken in response to that claim will be well-documented. autopaint.jpg

There are many ways employers may try to take action against employees who file injury claims, and some are not always obvious.

This kind of retaliation can be grounds for a separate legal claim for damages. Our compassionate legal team assists clients in not only securing fair work injury benefits, but in properly documenting retaliatory actions in a way that will preserve the case for a future civil lawsuit, if that is deemed necessary.
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Workers who suffer on-the-job injury may have more to worry about than just physical recovery or medical bills. According to recent reports published by the Workers’ Compensation Research Institute (WCRI), employees who have filed workers’ compensation claims are often concerned about retaliation or job loss following the injury. Furthermore, individuals who have some security in their employment may fare better in their recovery. Research indicates that those who feel that they have job security after an injury have shorter periods of disability than those who fear they may be fired.

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These studies show both the emotional and psychological damage of a work-related injury and also the reality that some employees may hesitate to file a claim because of job security issues. Our Asheville workers’ compensation attorneys are dedicated to protecting the rights of individuals who have been injured on the job. In addition to raising awareness to secure workers’ rights, we are also staunch advocates for clients seeking to recover workers’ compensation benefits or third-party damages.
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It’s not unheard of that a company, faced with a potential workers’ compensation claim, will attempt to suppress that claim by discouraging the worker from reporting it.
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Not only is this unethical, it’s illegal. Our Greensboro workers’ compensation attorneys are staunch advocates for workers’ rights, and we believe it’s imperative that employees be informed about what to do if they’re hurt on the job and how to respond to suppression tactics or retaliation.

A good example of this arose recently in Ohio, where the Occupational Health & Safety Administration alleges in a recently filed lawsuit that a phone company initiated more than a dozen unpaid suspensions in the course of two years to worker who reported on-the-job injuries. This kind of retaliatory action not only impacts the 13 workers directly involved, but it sends a clear message to anyone else thinking of filing a workers’ compensation claim: Beware.
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The workers’ compensation benefits program allows workers to file claims without having to prove fault. This gives the employee the right to collect compensation for lost wages and medical costs without having to go through the civil process of filing a lawsuit. While there are many benefits to the workers’ compensation system, it is also riddled with complications and issues for those who file. In addition to suffering from reduced access to claims or funds, recent reports indicate that many workers may also face retaliation from their employers.

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Filing a workers’ compensation claim requires medical documentation as well as additional paperwork to ensure timely and accurate recovery. When you or someone you love is faced with the devastating consequences of a work-related injury, remember that you are entitled to benefits, regardless of negligence or fault. Our Asheville workers’ compensation attorneys are dedicated to providing strategic counsel and advocacy and helping victims and their families recover the benefits they deserve.

According to a recent report, the number of workplace injuries has dropped by 31% over the last 10 years. While optimists may see this as a sign that workplace conditions are improving, others have identified a more sinister reason for the drop in claims. Some workers believe that companies are retaliating against those who file claims for workers compensation benefits. Though workers’ compensation claims have dropped, there were 100 state and federal retaliation claims, double the rate of the previous year.

While employers may claim that the decline in injury claims is indicative of a safer work environment, unions and workers’ rights advocates assert that the claims process discourages workers from filing injury claims. Even the U.S. Occupational Safety and Health Administration has found that too many injuries have gone unreported. Employers and companies have been reminded that federal law prevents retaliation against employees who file workers’ compensation claims.

OSHA representatives have also stated that the majority of accidents arise out of unsafe working conditions, not worker negligence. This could leave companies liable for fines and other violations if a worker injury leads to an investigation. Dangerous job sites can result in a number of injuries. The top five reasons for disability were overexertion, falls, injuries from climbing or bending, fall to a lower level and being struck with an object.

For employers, a workers’ compensation claim could result in lost hours and payouts for medical expenses. Though safety inspections and crackdowns may improve worksite safety, other legislation has made it more difficult to qualify for workers’ compensation benefits. In some cases, injuries were left unreported because they weren’t identified for months or ears. For example, exposure to harmful chemicals may not be immediately apparent.

Some employers have responded to injuries saying that it is the worker’s fault, even penalizing them for bringing a claim. In the unstable job market, many employees are afraid to bring claims because of the potential consequences they could face. Ultimately, this is counter to the goals of the workers’ compensation which aims to quickly bring relief to workers injured on the job. Workers’ compensation claims can be complicated and require an experienced advocate to protect our rights, review your case and present all necessary documentation to support your claim.
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There is a new memorandum of agreement between officials with the Occupational Safety and Health Administration (OSHA) and the Federal Railroad Administration (FRA).

This new agreement is going to facilitate cooperation and coordination between the two agencies regarding the enforcement of the FRA’s whistleblower provision. This provision will provide better protection for workers who choose to raise concerns of safety violations at railroads across the country. Workers were not always provided with the best protection under these circumstances and were often retaliated against. Under federal law, employers are not allowed to retaliate against workers who fear for their safety on the job and report a hazard or an accident.
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There are a number of regulations and safety standards that have been created that are supposed to be enforced by officials with the FRA, rail labor organizations and rail stakeholders. Oftentimes, inspections, education and enforcement are the most effective measures taken to help ensure the safety of everyone involved in the system. Unfortunately, these measures are not always taken by rail companies and organizations. That’s when officials have to step in. Currently, officials with the FRA have broad authority over the safety of the fleet but is not able to address whistleblower incidents.

Our Asheville workers’ compensation attorneys understand that the safety of these workers heavily relies on their ability to report a danger, a hazard, an accident or an injury. They need not fear retaliation, the loss of their job or anything else. A closed system means these kinds of incidents will not be reported and safety on the job will be compromised. Rail workers, as with all other workers in the country, have rights to a safe and healthy work environment and have the right to speak up about potential dangers.

“Securing a process that protects employees who report safety violations is critical to maintaining safety standards in the workplace,” said Joseph Szabo, FRA Administrator.

The number of whistleblower complaints within this industry has risen in recent year. From 2007 to 2012, there were nearly 1,000 reported to OSHA officials under only the FRSA. Nearly 65 percent of these complaints said that an employee was retaliated against after reporting a work accident or injury.

Now, officials with the FRA will have specific instructions to follow when dealing with whistleblower complaints. Officials with the FRA will have to hand over a copy of each complaint to OSHA. OSHA officials will be providing FRA members with the proper training to deal with these complaints, with effective measures to eliminate acts of retaliation and to help to recognize potential violations of railroad safety standards and regulations.

Lastly, officials with both parties will be working together to help to make sure that both illness and injury reports are as accurate as possible.
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North Carolina workers are often afraid to voice concerns about a potential work injury or environmental hazard on the job because they fear retaliation for blowing the whistle. Our Asheville workers’ compensation attorneys want to assure you that it is against the law for employers to behave in such a manner and that the company can be prosecuted to the full extent of the law if retaliation leads to workers suffering in any way, shape or form.

The United States Department of Labor’s Occupational Safety and Health Administration recently announced a lawsuit against a South Carolina real estate management company for retaliation against an employed whistleblower for reporting an environmental concern at one of the company’s job sites.
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The inhalation of asbestos fibers by workers is a common cause of illness at North Carolina worksites. Asbestos can be hazardous, according to OSHA, because the fibers, which are naturally breathed in, can cause serious disease or damage to lungs and other organs that may not be detected until years later. Build-up of scar-like tissue created by asbestos in the lungs can result in loss of lung function, which can lead to disability or even fatality if it goes undetected over time.

OSHA is suing CMM Realty Inc. of South Carolina for allegedly firing an employee after the employee reported a workplace and environmental concern regarding asbestos. The lawsuit includes back pay, interest and compensatory damages, reinstatement of his previous position at the company, as well as prohibition of future violations.

The employee voiced concerns about asbestos exposure to the owner of CMM Realty on May 13, 2009. The following day, the employee filed a complaint with South Carolina OSHA and the South Carolina Department of Health and Environmental Conservations. After each agency inspected the company, CMM Realty was cited for violating asbestos control standards. The day of the inspections, the concerned employee was told his services were no longer needed. On May 18, 2009, he was given official notice that he was fired from the company.

The following month, the employee went to OSHA to file a whistleblower complaint. Upon investigation, OSHA found that CMM Realty illegally fired the employee for reporting the asbestos concerns and possible exposure to a hazardous environment. In November, OSHA ordered CMM Realty to pay the employee $56,222 in compensatory damages and back pay, and reinstate the employee in his old job under the whistleblower provisions of the Clean Air Act. The realty company appealed and is currently waiting for review. In the meantime, OSHA has filed the current lawsuit with the federal court for violation of Section 11(c) of the OSH Act, which forbids companies to act out against employees who have filed a complaint with OSHA.

“We at OSHA are very serious about protecting America’s workforce and ensuring that employees have a voice about the safety of their work environment,” said Cindy A. Coe, OSHA’s regional administrator in Atlanta. “Employers found in violation of the whistleblower protection provisions of the OSH Act, Clean Air Act or any of the whistleblower laws we enforce will be held accountable and prosecuted to the fullest extent of the law.”
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As we head into the hottest days of summer, we wrap up our series of blogs on common workplace injuries with the two types of heat illness: heat exhaustion and heat stroke.

Workers with outside jobs or heat-related job duties are often at high risk of exposure to heat illness in North Carolina job sites.
Winston-Salem workers’ compensation lawyers want to remind employees that there is a fine line between heat exhaustion and heat stroke, so take the necessary precautions to avoid serious injury or illness while you are at work.
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WFMY News reports that a Burlington firefighter was recently treated for heat exhaustion after responding to a call regarding a machine fire at a plant at Glen Raven Mills. This is just one example of how heat-related jobs can not only be dangerous, but can cause serious illness. Thousands of workers throughout the U.S are treated at hospitals for heat exhaustion or heat stroke each year.

North Carolina Division of Public Health has already reported about 319 heat-related illness emergency room visits between May 1 June 4 this year. The majority of cases have involved young (ages 24-44) and middle-aged (45-64) adults. The three common reasons leading to the heat illness is playing or working outdoors and job-related outdoor activities.

The Centers for Disease Control and Prevention reports the workers that are most in danger of heat-related illness are farmers, factory workers, constructions workers, postal workers, bakers, miners, firefighters and boiler room workers. Employees most at risk are those older than 65, overweight, workers with high blood pressure, or workers on certain prescribed medications.

The following are symptoms of heat exhaustion: dizziness, cramps, headache, nausea, sweaty skin or a fast heartbeat. Heat stroke can often be detected by signs of confusion, convulsions, fainting, high temperature or red, hot and dry skin. Anyone experiencing these symptoms should seek medical attention immediately.


The Occupational Safety and Health Administration offers the following tips to prevent a heat-related illness at work:

-Drink plenty of water on a timely schedule, even if you aren’t thirsty. It is recommended to drink every 15 minutes.

-Refrain from drinking beverages like coffee, energy drinks, soda or alcohol in extreme hot temperatures.

-Keep an eye on other employees around you. If you see strange behavior or signs of heat exhaustion call for help immediately and alert a supervisor.

-Have your work site location memorized in case you need to call for help. A 911 dispatch will need an address to send a rescue team to your location.

-Always wear a hat for protection from the sun and light-weight and fair-colored cotton clothing. Dark clothes attract the heat and shouldn’t be worn.

-Ask your employer to provide a tent or covering for shade. Take periodic breaks in the shade.

-Never climb under machinery or a vehicle to get out of the sun. You run the risk of the vehicle moving and crushing you.
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In North Carolina, if a worker files a workers’ compensation claim for benefits and then faces retaliatory acts by the employer for making that claim, the worker is protected by the Retaliatory Discrimination Employment Act (REDA). In order to bring a civil suit under that act, the worker must show three things: 1) that he or she had made a claim for or provided information related to a workers’ compensation benefits; 2) that a retaliatory action was taken against him or her; and 3) that the retaliatory action was prompted by the worker’s request for benefits.

A recent opinion by the Court of Appeals of North Carolina addressed the question of whether two particular acts constituted “retaliatory action.” The plaintiff in that case alleged that her employer had not allowed her to be treated by a particular doctor of her choice, and that the employer had not allowed her to return to work, after her injury, in a different position than the one she had held before. The Court held that neither of those acts constituted “retaliatory actions.”

While an employer’s refusal to approve treatment by a particular medical provider is not considered a type of retaliation under REDA, employees may petition (or ask) the North Carolina Industrial Commission to approve treatment with a provider chosen by the employee. A North Carolina workers’ compensation attorney would be able to assist workers through this petition process.

Consequences that would more typically be seen as retaliatory actions under REDA would be the termination of a worker’s employment; suspension; unjustified relocation; reduction of benefits; or other actions that would negatively impact the conditions of the worker’s employment.

Workers who believe that they have suffered a retaliatory action related to a workers’ compensation claim in North Carolina should call the Employment Discrimination Bureau to discuss their situation and the steps they need to take in order to file a complaint form; the complaint must be filed within 180 days of the date of the retaliatory action.
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