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Managing people, human capital and culture - Human Resource Management (HRM) is critical for business success. HRM Guide publishes articles and news releases about HR surveys, employment law, human resource research, HR books and careers that bridge the gap between theory and practice.

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Successful Onboarding

Successful Onboarding: Strategies to Unlock Hidden Value Within Your Organization

Mark Stein and Lilith Christiansen
  Fact: 1/3rd of all external hires are no longer with the organization after 2 years. What can you do about it? In a word: onboarding; although poorly understood, subject to narrow definitions, and with limited best practice understanding or management rigor. Consultants Mark Stein & Lilith Christiansen have worked with leading companies on it, and they've synthesized their work into a ready to use system.
  More information and prices from:
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The HR Answer Book

The HR Answer Book: An Indispensable Guide for Managers and Human Resources Professionals

by Shawn A. Smith, Rebecca A. Mazin
  The HR Answer Book addresses 200 questions that every employer needs to deal with, from recruiting and hiring to discipline and termination, compensation and benefits to training and employee relations. Accessible and concise, this on-the-job companion offers expert guidance on all types of "people" issues.
  More information and prices from:
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Fired With an Open Claim: Do I Need a Workmans Comp Lawyer?

Workmans Comp Lawyer

December 5 2019 - Picture this. You are going about your business at work when you get injured. Say, for example, you work with heavy machinery, and something drops on your feet. Or perhaps, your workmate caused an accident, and you ended up hurt.

Whatever the case, accidents happen, in fact in the workplace they occur every 7 seconds. It is for this reason that your employer should take out insurance for his workers.

Of course, when you get hurt, you are going to make a claim for workers' compensation.

With these benefits, you will have your medical bills covered by your employer, and you are also entitled to some of the wages you will miss.

Depending on the severity of your injury, you will be out of work for some time. It may take some days, moths, or even years to fully recover.

The truth remains that during this time, your income will go down significantly. Given that you don't know when you will get back to work, the last thing you want to worry about is being let go.

So, what happens when your boss actually lays you off? Will you need a workmans comp lawyer?

Here's all you need to know if you get fired with an open claim.

Workers' Compensation

Workers' compensation is insurance coverage that protects employees from work-related injuries. In case an employee gets injured or disabled while at work, the system offers monetary benefits. Depending on the state rules, employees may receive a portion of their wages as they recuperate.

In case an employee dies after sustaining injuries while at work, workers' comp will pay some benefits to the deceased's family and dependents.

If an employee agrees to have workers' compensation, they don't have to go to too much trouble to cover their bills. However, by doing so, they also agree not to sue the employer for any injuries sustained while at work.

The employer, on their end, agrees to some liability to some extent, which helps them avoid a much bigger negligence lawsuit. By signing a workers' compensation, both the employer and the employee stand to benefit.

Can I Be Fired with an Open Claim on Workers Compensation?

Countless accidents happen in workplaces each year, but only a few workers make claims on their workers' compensation. The primary reason is that they fear getting laid off from their jobs.

One of the things that may cross your mind is that your employer may not want to wait for you to fully recover while they could just get someone else.

The good news is that the law protects you from this treatment. However, there are some thin lines.

An employer or company can let go of an employee who is on workman's comp. They can't, however, fire someone based on a work injury  that has an open claim.

Most employees in the country work under 'at will' employment. This means that the employer can lay them off at any time. On the other hand, the employee can leave whenever they want.

The fact that the employee can get laid off under different circumstances is often a confusing matter. Most workers think that they have total protection from being laid off. Unfortunately, this is not always the case.

Workers only get protection from being laid off on the sole basis of being on workman's comp. Should this happen, you can even take some legal action.

When Will I Need a Workmans Comp Lawyer?

Most people can claim their workers' compensation without the help of a lawyer. This is especially so in the cases of minor injuries that won't involve a lot of time off work.

Cases that involve disputes with the insurance companies will also require that you hire a lawyer.

A workman's comp lawyer will especially come in handy if you get a termination letter while on compensation.

Your employer knows that it is illegal for them to let you go because you are on workers' compensation. They will never, therefore, cite this as a reason for firing you.

If you suspect that you were fired as retaliation for claiming workers' comp, you will need to gather enough evidence to prove this. It may be difficult to determine whether or not your injury was the reason for getting fired. So, below are a few tips we've gathered to help you.

Timing

How soon after making a claim did your employer fire you. If you received your termination letter within a few days or weeks following your injury, there are high chances that it was a case of retaliation.

Reason Given

Your employer should give you a clear reason before firing you. The reason should relate to your performance at the company or any other reason which they can prove. Retaliation is the most likely reason if you have been performing your usual responsibilities, and there have been little or no complaints.

Negativity Towards the Claim

How did your managers react when they found out you had made a claim? Did they say negative things about it? Did they convince you to back out? Should you get fired soon after, your supervisors were probably not thrilled that you would miss work for some time.

What to Do if You Were Fired While on Workers' Compensation

We have already established that it is possible to get fired while on workers' comp. If your employer cites a legitimate reason, then there's not much you can do.

Say, for example, your employer had previous complaints about your performance. You could even have gone back to work with some restrictions that hinder your performance. If this is the case, then your employer has the legal right to let you go.

You will still be eligible for your workers' compensation benefits after you are fired. The insurance will still cover your medical bills, even if the terms of your termination were legal. In some states, you may still be protected by some laws. The Americans With Disabilities Act requires that employers provide accommodation to any of their employees who have disabilities or serious medical conditions.

If you suspect that your boss fired you as retaliation, then you may have to talk to a workers' comp lawyer. The lawyer will explain what you need to do and advise you accordingly.

But, before then, here are a few things you should know beforehand.

Keep All Documents

It is vital that you keep all the documents pertaining to your injury and termination. These documents include medical bills and emails with your employer. Print out all of these documents and keep them handy.

If the case escalates to a lawsuit, you can use these documents as evidence. You'll also want to include any medical documents provided by your worker's comp doctor.

Seek a Settlement First

Of course, your worker's comp lawyer will advise you on what action to take. However, it is best to consider a settlement with your employer out of court.

Have your workers' comp lawyer represent you in talks with your employer. Your employer should provide evidence that they fired you on legal grounds. If they cannot, then they have no grounds to let you go.

Court proceedings may take forever, so if you can settle out of court, the better. If you are going to file a lawsuit, you should know that there are statutory limitations. You should, therefore, talk to an attorney as soon as you can.

What Will Your Workers' Comp Attorney Do?

If you do not settle, a workers' comp judge will hear your case. Your workers' comp lawyer will conduct an investigation process through which they may request your documents, perform some research, and even conduct witness depositions.

Your lawyer will also make sure that they submit all the required documents in time. The rules vary between states. However, most of them will require that you file your workers' comp claim together with your retaliation case.

During the hearing, your workers' comp lawyer will present your case. They will present the evidence that you were fired on illegal terms and raise any objections from your employer.

Your workers' comp lawyer will ask that you get your job back and get paid for the lost wages. In some states, the court may even impose a fine on your employer. For example, employers in California have to pay an additional 50% of their employees' benefits, if they let them go because of an open claim.

If you are still not satisfied with the court's ruling, you can appeal your workers' comp lawyer.

The Final Word

The lines on getting fired while on worker's compensation are thin. Your boss can't fire you for making a claim, but they can fire you while on workers' comp for entirely other reasons. As long as their reasons are legit, they have every right to do so.

However, if you suspect that your claim is the reason behind your termination, you should seek the help of a workermans comp lawyer. They will let you know what the best thing to do is. If you end up filing a lawsuit, they will represent you in court.

If you're still looking for additional information regarding legal proceedings with workman's comp, check out our blog for more information. 





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