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Can My Employer Fire Me While I’m On Workers’ Compensation?

You’ve been seriously injured at work. You are dealing with spending time in the hospital or taking multiple trips to the doctor. Stress is at an all-time high. The injury wasn’t your fault, so you shouldn’t have to worry about losing your job. Right? I mean, your employer can’t fire you while you’re on workers’ compensation anyway…right?

Suffering a workplace injury is never easy and no hardworking individual should ever lose their job because they reported an injury to their employer. However, the reality is that often times, especially in certain industries, it is common practice to terminate injured employees.

Harman Law is somewhat unique in that, not only do we represent injured workers in their workers’ compensation claims, but we also represent employees who have been wrongfully terminated. We are often asked by our workers’ compensation clients whether or not they have to worry about the company terminating their employment once they’ve filed a workers’ compensation claim. Unfortunately, the answer is yes. Just because you’re on workers’ compensation, you are not protected from being fired or laid off. For example, if you were going to be fired due to poor performance prior to the injury, or you were going to be laid off due to a larger reduction-in-force, simply filing a workers’ compensation claim does not shield you from termination.

With that being said, your employer cannot fire you because you filed, or even inquired about, a workers’ compensation claim. Under the North Carolina Retaliatory Employment Discrimination Act (“REDA”), it is illegal to fire, suspend, demote, relocate, or take other adverse actions against an employee who participates in certain protected activities. Those activities include, but are not limited to, filing a workers’ compensation complaint.

In order to bring a REDA complaint, the employee (called the “complainant”) must file the complaint with the North Carolina Employment Discrimination Bureau within 180 days of the last retaliatory or discriminatory act. The complaint must detail the alleged act, and why you believe it was taken. After the complaint is filed, the Employment Discrimination Bureau will begin an investigation, in which it contacts both you and the employer. If the employer is found to have willfully violated REDA, the court can triple the amount awarded for lost compensation and wages, or other economic damages caused by the violation. The court can also order that the complainant’s legal and attorneys’ fees be paid by the employer.

Unfortunately, it is very difficult to prove the exact reason why you were fired, and your employer will most likely not admit that workers compensation was the reason. You don’t always need the “smoking gun” type of evidence, such as a supervisor telling you they are firing you because you were injured or filed the claim, but you will have to find solid evidence that the termination was retaliatory. If your employer has another reason that was stated publicly, try to collect documentation or evidence that demonstrates why that reason is unconvincing.

If there’s any good news, it’s that regardless of the reason why your employment is terminated, any workers’ compensation benefits you were receiving before the termination will continue after the termination. Still, many workers are reluctant to pursue a claim out of fear of losing their jobs and choose to use their own health insurance or avoid getting any treatment at all. Although that fear is not completely unjustified, when you have been injured at work, you are entitled to workers’ compensation benefits and should not be afraid of taking advantage of that right.

At Harman Law, we are committed to helping injured workers get the workers’ compensation benefits they deserve, while also making sure they are compensated in the event that they become victims of retaliatory termination.

The Process of Obtaining Unemployment Benefits in North Carolina

If you have lost your job for reasons beyond your control, you may be entitled to North Carolina unemployment insurance benefits. Unfortunately, the appeals process for unemployment can be time consuming, burdensome and complex. I’ve provided a breakdown below of the process of obtaining unemployment benefits in North Carolina. Harman Law, PLLC can help you at whatever stage you find yourself in.

The Initial Determination                   

When you initially apply for unemployment, an Adjudicator takes the information you provide, along with information provided by your employer to make a determination of whether you qualify for unemployment. It takes several weeks to receive this determination.

If the Adjudicator determines that you are disqualified from receiving benefits, then you can appeal that decision simply by writing “I appeal” on the determination and submitting it to the Division of Employment Security at the address/fax/email provided on the determination, or by dropping it off at your local office. Of course, if the Adjudicator finds in your favor, the employer also has the opportunity to appeal.

There will be a date on the determination by which you have to submit your appeal. If you fail to submit it by the date listed, it is very possible that your appeal will be denied.

Appeal from the Determination (Lower Authority Review)

If you appeal the Adjudicator’s determination (or if the Employer appeals), you will be scheduled for an appeals hearing. Again, it will take several weeks before you get notice of the hearing date/time. During this time, you should continue to file your weekly certifications – even though you may not be receiving benefits.

These hearings typically take place over the phone, although you or the employer may request to have the hearing in-person at the local office. During the hearing, you and your employer will be given the opportunity to explain to the Appeals Referee the events leading to your separation of employment. Both parties may call witnesses and cross-examine the other party.

It is important to remember that this hearing will likely be your only opportunity to present evidence. Any future appeals (discussed below) will be limited to a review of the hearing. So, it is important that you present all evidence relevant and important for your case.

This is also the best point to retain an attorney.

Appeal from Appeals Referee’s Decision (Higher Authority Review)

After your hearing, the Appeals Referee will issue a decision in writing. This typically takes 1-2 weeks. If the decision is not in your favor, you have the opportunity to appeal the decision for Higher Authority Review, which is conducted by the DES Assistant Secretary, Board of Review or their designees. To do this, you must submit a written appeal within 10 days of the date the decision was mailed. It is not enough to simply write “I appeal” as with the initial determination. You must list a specific, legal-reason(s) for the appeal.

Once you appeal, the DES will review the recording of your hearing and all paperwork that is part of the record. The purpose of the review is to determine whether they believe the Appeals Referee made any errors in the decision, given the evidence presented at the hearing and/or in the record.

It can take anywhere from 2 weeks to 6 months to get the decision back from this appeal. Although it does happen, it is much less common that decisions of the Appeals Referee are overturned. Once the decision has been made, it will be mailed to you.

Appeal from the Higher Authority Review (Judicial Review)

If the decision of the Higher Authority Review is still not in your favor, you can ask for post-decision relief within 10 days of the date the decision was mailed. This rarely changes the outcome. You can also file a Petition for Judicial Review within 30 days. If you get to this point, you will definitely want to consider retaining an attorney.

The PJR is filed in state court in the county in which you reside. There is a $200 filing fee. Once the PJR is filed, it will be placed on the court calendar. This can take a few months, depending on the county. Once it is calendared, your attorney goes before the Superior Court Judge and presents an argument that the Appeals Referee made an error in their decision given the evidence presented in the hearing. An attorney from the DES will be there to argue the opposite. Once the judge reviews the record, he/she will make a decision.

If the Superior Court Judge does not find in your favor, you can appeal their decision to the NC Court of Appeals and potentially even to the North Carolina Supreme Court after that. These appeals become very costly and time intensive, so you should consider consulting with an attorney before attempting these appeals on your own.

When losing your job, these unemployment benefits can be crucial to your survival while seeking subsequent employment. After being denied benefits, retaining an attorney will drastically increase your likelihood of getting the benefits you deserve. The unemployment compensation attorneys of Harman Law can help you at any stage in this process. Contact us today to see how we can help.

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