San Francisco Employment Law Firm Blog
Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.
Careful investigation of the facts and circumstances of the employee’s employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer’s learning of the employee’s filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.
The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee’s productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.
The second component of demonstrating unlawful retaliation is the evidence specific to the workers’ compensation system. Information to obtain of this type includes the number and disposition of all workers’ compensation claims that have been filed against the employer, and information about the whereabouts and subsequent histories of employees who had filed claims.
The third piece of evidence essential to proving retaliation claim is the aggrieved employee’s hospital and medical records, with special attention to the timing of visits to health care providers. The employer may have likely retaliated for an employee taking time off to see a doctor or get treatment, which in many cases is also considered an unlawful retaliation and disability discrimination.
It is also important to obtain documents evidencing the employer’s position with respect to the underlying workers’ compensation claim. i.e. Was your workers compensation claim contested by the employer? On what grounds? How vigorously? What was the outcome?
It is hard to overestimate the importance of documentary evidence in proving retaliation and disability discrimination claims in California. As in most individual discrimination claims, the testimony of the employee and employer generally ends up in flat contradiction regarding key elements of the claim. Proper documentation is likely to be crucial in corroborate the employee’s testimony and disprove the testimony of the employer, casting doubt on the truthfulness of the employer’s stated motives for discriminating and/or terminating your employment.