Wrongful Termination and Retaliation

Retaliation Is Illegal in Louisiana Workers Compensation

Under Louisiana workers compensation law, an employer cannot fire an employee just because that employee has filed a workers compensation claim.

Also, no employer can refuse to hire a job applicant just because that applicant has filed a workers compensation claim.

If an employer does fire an employee or refuses to hire a job applicant, just because that employee or job applicant has filed a workers compensation claim, then that employee or job applicant can recover from the employer or prospective employer the amount the employee would have earned but for the discrimination (based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge), but no more than one year’s earnings, together with reasonable attorney’s fees and court costs.

However, if an employee or job applicant is found by a court to have brought a frivolous claim for wrongful termination, then that employee or job applicant shall be held responsible for the reasonable damages which the employer incurred as a result of this wrongful termination claim, including reasonable attorney’s fees and court costs.

So the bottom line here is that an employee may not be discharged for filing a workers compensation claim, but may face serious consequences if the employee brings a frivolous claim for retaliatory discharge.

However, it is crucial for the employee to understand that an employee can be legally terminated if the employee’s treating physician finds that the employee can no longer medically perform his or her job duties. In such a situation, though, the employee should continue to receive full workers compensation benefits.

Additionally, federal laws – such as the Family and Medical Leave Act or the Americans with Disabilities Act – do provide additional protections to certain injured workers in Louisiana.

Retaliatory Termination in Louisiana Workers Compensation

Under Louisiana workers compensation law, retaliatory termination is defined as when an employer retaliates (or strikes back) against an employee or job applicant who is receiving workers compensation benefits, by refusing to employ that applicant or by firing that employee, just because the applicant or employee brought a claim for workers compensation benefits, either in Louisiana or in any other state, or under federal law.

However, under Louisiana workers compensation law, the definition of retaliatory termination does not include the discharge of an employee who is no longer able to perform the duties of employment due to injury.

A lawsuit for retaliatory termination (or wrongful termination) must be brought in a district court and cannot be brought in a workers compensation court.

In order to succeed in a lawsuit for retaliatory discharge or failure to hire, the employee or applicant must prove, by a preponderance of the evidence, that the employee or applicant was terminated or refused employment because he or she asserted a claim for workers compensation benefits.

So, in a lawsuit for retaliatory discharge or failure to hire, the employee or applicant must present either:

1. Direct evidence that the assertion of the workers compensation claim was the reason for the retaliatory discharge; or
2. Circumstantial evidence that is sufficient to establish more probably than not that the reason for the discharge or the failure to hire was the assertion of the workers compensation claim.

However, the employee or applicant must file a lawsuit within one year of the retaliatory action, or his or her legal rights to do so will have expired.

Valid Reasons for Termination in Louisiana Workers Compensation

Again, Louisiana law prohibits an employer from firing an employee in retaliation for the employee filing a workers compensation claim.

But Louisiana workers compensation law does allow the employer to terminate the employee’s job position employment if the employee is medically unable to perform the work, and Louisiana law does not require the employer to allow an injured employee to return to his or her job position when the employee has recovered from his or her injury.

So, at a hearing for retaliatory termination (or wrongful termination), if the employee provides sufficient circumstantial evidence to prove that the employee was more probably than not discharged because he or she filed a workers compensation claim, the employer may defend itself by showing, through a preponderance of the evidence, that there was another non-discriminatory basis for the discharge (or the refusal to hire).

The trial court for the retaliatory termination (or wrongful termination) lawsuit must then determine whether the employer’s explanation is “merely a guise for retaliatory discharge,” or whether the employer is simply trying to circumvent the law by stretching the facts out of context or inventing an excuse for firing a workers compensation claimant.

In other words, when the employer offers another justification in connection with firing a workers compensation claimant, the trial court for the retaliatory termination lawsuit must determine the employer’s true reason or motive for the firing, based on the facts presented.
Additionally, the timing of the dismissal alone is not sufficient enough to prove retaliatory termination; however, the timing of the dismissal may be some evidence of retaliatory motive when presented with additional evidence. 
Nonetheless, valid reasons for termination of employment (even when the employee is receiving workers compensation benefits) include when:

1. The employee has failed to complete his or her job duties before the employee’s injury;
2. The employee demonstrated identifiable poor performance before the employee’s injury;
3. The employee who is a contract employee is being terminated for a reason listed in the contract;
4. The employee who is in a labor union is being terminated for a reason listed in the union’s collective bargaining agreement;
5. The employee violated established company policy;
6. The employee engaged in professional misconduct;
7. The employee acted illegally or criminally;
8. The employee failed a workplace drug or alcohol screening;
9. The employer is restructuring its business, and the employee’s job position is being eliminated; and
10. The employer is having financial problems and needs to reduce the number of employees.

Nonetheless, the injured employee or job applicant must be vigilant to ensure that the employer’s explanation for the termination is not merely an excuse for retaliatory discharge.

What to Do After a Termination in Louisiana Workers Compensation

If a Louisiana employee is terminated – especially if the employee is receiving workers compensation benefits – this employe should:

1. Keep calm and not act crazy;
2. Not act on any negative impulses; 
3. Not engage in verbal outbursts, physical aggression, or damage to company property;
4. Refuse any offer asking the employee to resign instead of being terminated;
5. Negotiate for the highest possible severance package;
6. Ask the employer or supervisor to provide all communication about a severance package in writing;
7. Ask the employer or supervisor to provide the specific reasons for the termination;
8. Ask for the specific reasons for the termination in writing;
9. Ask the employer or supervisor to provide the identity of who decided to terminate the employee; and
10. Ask the employer or supervisor to allow the employee to review his or her personnel file.

From there, the employee should seek out an experienced employment law attorney to discuss the termination and be advised of the employee’s full legal right.

The employee or job applicant has one year from the date of discharge or the refusal to hire to bring a retaliatory discharge or a wrongful termination claim.

If successful, the employee who is retaliated against may recover up to one year’s lost wages, plus reasonable attorney’s fees and court costs.

The Louisiana Statute for Retaliatory Termination of Employment in Louisiana workers Compensation

The primary Louisiana statute regarding the termination of employment is La. R.S. 23:1361, which reads as follows:
§1361.  Unlawful discrimination prohibited
A.  No person, firm or corporation shall refuse to employ any applicant for employment because of such applicant having asserted a claim for workers compensation benefits under the provisions of this Chapter or under the law of any state or of the United States.  Nothing in this Section shall require a person to employ an applicant who does not meet the qualifications of the position sought.
B.  No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States.  Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C.  Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with reasonable attorney’s fees and court costs.
D.  The rights and remedies granted by this Section shall not limit or in any way affect any rights and remedies that may be available under the provisions of any other state or federal law.
E.  Any party found by a workers compensation judge or a court of competent jurisdiction to have brought a frivolous claim under this Section shall be held responsible for reasonable damages incurred as a result of this claim, including reasonable attorney’s fees and court costs.
Added by Acts 1980, No. 704, §1.  Acts 1983, 1st Ex. Sess., No. 1, §6; Acts 1993, No. 638, §1, eff. June 15, 1993; Acts 1997, No. 88, §1, eff. June 11, 1997.