Thomas A. Robinson on Recent Workers' Compensation Cases Involving Retaliatory Discharge Claims: Wrongful Demotion; Discharge As Not a "Change in Condition"
Under the "at-will" employment doctrine en force within a number of states, an employer may terminate an employee for good reason, for bad reason, or for no reason at all (proponents of the rule would counter that within these jurisdictions employees may leave one place of employment for another without notice). A number of states, either by judicial decision or legislative action, have carved out exceptions to this at-will employment rule, particularly where issues of strong public policy are involved.
One such public policy exception relates to the firing of an employee who has filed a claim for workers' compensation benefits. Under the so-called "workers' compensation compromise," the injured worker has given up his or her right to sue the employer in tort in exchange for a set of relatively sure, yet modest, benefits. The injured worker may not recover, however, for his or her pain and suffering, and the worker's spouse may generally not recover any damages for loss of consortium. In light of this "compromise," many courts and legislatures have reasoned that the injured worker should not face the risk of loss of employment for the exercising of his or her statutory right to compensation.
Should the retaliatory discharge exception be extended to situations in which the injured worker is not discharged, but is only demoted in retaliation for filing a claim? In the expert commentary Thomas Robinson analyzes two recent decisions- Trosper v. Bag 'N Save, 273 Neb. 855, 734 N.W.2d 704 (July 6, 2007), and Sims v. Ashley Furniture Industries, 964 So.2d 625 (Miss. Ct. App. September 11, 2007) - both of which offer interesting twists on retaliatory discharge claims. In the Nebraska case, the plaintiff was successful in getting the court to extend the retaliatory discharge rules to cover retaliatory demotions. In the Mississippi case, faced with the state's firm refusal in the past to allow even retaliatory discharge claims to proceed, the employee's attorney tried an ingenious argument-although unsuccessful-argument, contending that the client's firing amounted to a change in condition or circumstances, and should have allowed the employee to reopen the settled workers' compensation claim.
Thomas Robinson examines the cases, discusses the rules related to retaliatory discharge, and highlights decisions from other jurisdictions related to the issues. He concludes that allowing an injured worker to sue his or her employer for retaliatory demotion is consistent with the overall scheme for providing basic benefits to employees who sustain injury arising out of and in the course of the employment. The right to recover when one has been demoted in retaliation for filing a comp claim is virtually as important as the right to recover when one has been discharged.