Can an employee be fired or terminated for making a workers comp claim? No, in Wisconsin an employee cannot be fired or terminated for filing a worker’s compensation claim. But rarely does an employer leave any evidence of this as a reason for a termination, there is no smoking gun. Instead, what happens is the IME doctor hired by the worker’s compensation insurance company will lay a basis for a termination in the IME report. The IME doctor will state that the injured worker does not have a work-related injury or the worker does not have work-related restrictions preventing him from doing her job. Then when the injured worker follows his own doctor’s advice and stays within his restrictions, he is terminated. The other method of termination, even in conceded claims, is when the worker presents himself for a return to work with restrictions, the employer will say they have no jobs within the restrictions. This may be true, but if it is not, then the injured worker may have a refusal to rehire worker’s compensation claim.
Generally, in the absence of an employment contract (either an individual personal services contract is very rare or a union collective bargaining contract which is getting less common all the time too) an employee serves at the will of the employer and can be terminated for any or no reason, as long as its not a protected discriminatory reason. There may be wrongful termination issues to look at in a given case, but they are outside of worker’s compensation and not something our office advised or represents concerning. Persons interested in wrongful termination should seek out an employment and/or discrimination lawyer.
The refusal to rehire worker’s compensation claim under Wis. Stats. Sec. 102.35 may be something to pursue if the injured worker could return to work and the employer unreasonably refused to take him back. The issue often comes down to whether the employer actually had a job within the injured worker’s restrictions or not. The penalty is up to one year’s wages, and is not covered by the worker’s compensation insurance company but is paid by the employer.
Refusal to rehire claims are relatively few. The most common reason it does not arise is that the injured employee agrees with the employer that there are no jobs he or she can do within his work-related restrictions – and now the injured worker can pursue vocational retraining or loss of earning capacity benefits.
At McCormick Law Office in Milwaukee, Wisconsin our attorneys get the best results in workers compensation cases pursuing retraining or loss of earning capacity benefits when the worker is fired or terminated.