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Filing a workers’ compensation claim is a legal avenue provided to workers who are injured while performing duties in the scope of their employment. However, due to the threat of increased insurance rates, or even a bad reputation, an employer may respond to the filing of a workers’ compensation claim in a negative way.

If the negative actions of the employer adversely affect you, you may have a case for employer retaliation in Winston-Salem workers’ compensation cases. A detail-oriented attorney could review your claim to help you determine whether you have a viable case.

Actions that Constitute Workers’ Compensation Retaliation

Not every action taken by an employer is considered retaliation. Pursuant to N.C. Gen. Stat. § 95-240, the following are actions which may constitute retaliation:

  • Termination from the job
  • Suspension from the job
  • Demotion from a former position
  • Relocation from a previously attended work location

In addition, any action taken by the employer which adversely affects the employee’s benefits or conditions of employment may also constitute an illegal practice. Speak with a lawyer today for more information about employer retaliation in Winston-Salem workers’ compensation cases.

Overcoming the Winston-Salem At-Will Employment Obstacle

North Carolina law states that employees are at-will to an employer. That is, they share no working contract with the employer and thus can be hired, and fired, at-will and without cause.

If an injured worker was terminated following the filing of a workers’ compensation claim, the first obstacle is proving to a trier of fact that their termination was the sole and proximate result of the workers’ compensation filing. Employees of government entities or other official state offices may be able to avoid this obstacle if they are under an employment contract and thus not an at-will employee.

Complaint to the Labor Commissioner

The second step in fighting employer retaliation is receiving permission from the Labor Commissioner to sue. Once an employee discovers their employer’s adverse actions, they have a duty to file a complaint with the Labor Commissioner no later than 180 days from that date.

The Commissioner will perform an investigation and, if they do not believe the claim, will dismiss the workers’ complaint and issue the worker a right-to-sue letter. If the Commissioner does believe in the truthfulness of the claim, pursuant to N.C. Gen. Stat. § 95-242 they will:

  • Try to mitigate the employer’s actions by contacting the employer to participate in reconciliation discussions
  • Notify the parties that reconciliation is not possible and will either file a lawsuit against the employer directly or issue the employee a right-to-sue letter

Complaint to the Court

After the right-to-sue letter is issued, according to N.C. Gen. Stat. § 95-243, the aggrieved worker has 90 days to file a lawsuit against the employer. Alternatively, the worker has 90 days to file a lawsuit after notification from the commissioner that the reconciliation they facilitated was unsuccessful.

Workers who file a lawsuit against their employer for retaliation have the right to demand a trial by their peers and must file the lawsuit in the superior court of the county where the retaliation occurred, where the worker lives, or where the employer’s primary business is located.

Get Help with Employer Retaliation in Winston-Salem Workers’ Compensation Cases

Employees who are injured and filed a workers’ compensation claim are legally protected from employer retaliation, even if they only threaten to file a workers’ compensation claim.

If you experienced employer retaliation in a Winston-Salem workers’ compensation case, you have the right to inform the Labor Commissioner of the actions taken against you and the right to sue your employer with permission from the commissioner. For help understanding your rights and options in employer retaliation in Winston-Salem workers’ compensation cases, speak with a local workers’ compensation attorney.