Help Wanted: Tips on workers' comp retaliation

If a company fires a worker, the worker If a company fires a worker, the worker would most likely qualify for unemployment benefits, unless the employer makes the case that it let the worker go for misconduct. Photo Credit: iStock

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues. ...

DEAR CARRIE: I was on workers' compensation for two months because I hurt my back at work. Now that I'm back in the office, the managers have put me on notice because they say my work is bad. I have to meet every week with the human resources department, which has started a paper trail on me. This is stressful and unfair. I have been at the company for 13 years, and no one had ever criticized my work. I am never late, and I have nothing negative in my personnel file. I believe all of this is happening because I was out on workers' comp. If the company lets me go, can I collect unemployment benefits and my weeks of vacation, or do I lose everything? -- Comp Daze

DEAR COMP DAZE: If the company fires you, you would most likely qualify for unemployment benefits, unless the employer makes the case that it let you go for misconduct. But that doesn't seem to be an issue here.

You didn't ask about retaliation even though you believe it is a factor in your problems at work. It's a serious issue and, if proved, could mean penalties for the company.

"An employer may not retaliate against a worker because he or she filed or testified in a workers' compensation case," said Joseph Cavalcante, a state Workers' Compensation Board spokesman.

The company could face fines of $100 to $500 if you file a claim and prevail, he said. More significantly, if the company had fired you, you could get your job back and receive compensation for lost wages, among other things, he said. You have two years to file form DC-120 alleging retaliation.

After you file, the board would hold a hearing on the matter. But the onus is on you to back up your claim.

"The burden of proof is on the worker to demonstrate he or she was retaliated against because of his or her involvement in a claim," Cavalcante said.

One side note is that even if the company lets you go, you can continue to receive medical care for your back injury from the workers' comp fund, which companies pay into.

"Once a workers' compensation claim is established, an employee is entitled to lifetime medical care to treat that injury, whether or not the worker remains employed by the same business," Cavalcante said.

As for your entitlement to accumulated vacation time if you're fired, that would depend on the company's vacation policy. Companies often write into their policies that employees forfeit any accumulated paid-time off when they leave their job, for whatever reason. So now is a good time to look into the paid-time-off small print, and if you stand to lose the time, consider using some of it now.


Click here to find a copy of workers' comp retaliation-claim form DC-120 at http://bit.ly/HG2nSM.

For further information, call the Long Island district office at 866-681-5354 or click here to read more at www.wcb.ny.gov.


DEAR CARRIE: My colleagues and I, who are in the information-technology department of a company, work late hours, but we never get a shift differential. I work from 3 to 11 a.m. My co-workers' shift runs from midnight to 8 a.m. Our colleagues in the factory who work late shifts get the differential. Shouldn't we get the differential as well? What can we do? -- Differential Difference

DEAR DIFFERENTIAL: Unless you have a union contract requiring a pay differential, a company can decide who gets one, provided the employer doesn't discriminate on the basis of such things as race, gender, age and religion. Companies have a lot of leeway in setting the policy for shift-differential pay, because labor law doesn't require it. So what can you do? Politely ask the company to explain why its treats IT differently and ask again for the extra pay.

Call Carrie Mason-Draffen with workplace questions at 631-843-2791, or e-mail her at carrie.mason-draffen@ newsday.com. Send a letter to Dear Help Wanted, Business Desk, Newsday, 235 Pinelawn Rd., Melville, NY 11747-4250.Your name and number won't be published. Not all questions can be answered; some may be edited for length and clarity.

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