Allegations of retaliation arising from a workers’ compensation claim can create significant exposure for employers, even when the underlying claim lacks merit. In New York, Workers’ Compensation Law (WCL) § 120 prohibits employers from discharging, refusing to reinstate, or otherwise discriminating against an employee because the employee filed, attempted to file, or testified in connection with a workers’ compensation claim. Notably, the defense of, and potential liability under, WCL § 120 falls directly on the employer—not the workers’ compensation carrier.
Although retaliation claims can be emotionally compelling, they are often defensible when employers maintain consistent personnel practices, maintain thorough documentation, and can prove legitimate business reasons for perceived adverse employment actions.
Understanding the Claimant’s Burden
To prevail under WCL § 120, a claimant must establish that the adverse employment action was motivated by the employee’s pursuit of workers’ compensation benefits. Mere temporal proximity between a workers’ compensation filing and a disciplinary action or termination is insufficient by itself to establish unlawful retaliation.
The New York Court of Appeals has recognized that WCL § 120 was not intended to insulate employees from legitimate personnel decisions merely because they have filed a workers’ compensation claim. Rather, the statute prohibits discriminatory conduct undertaken “because” of the workers’ compensation activity, while preserving an employer’s right to act for valid, independent business reasons. See, e.g., Matter of Axel v. Duffy-Mott Co., 47 N.Y.2d 1 (1979); Matter of Duncan v. New York State Developmental Center, 63 N.Y.2d 128 (1984).
The Most Effective Defense: Documented Legitimate Business Reasons
From a defense perspective, the strongest cases typically involve well-documented, non-retaliatory explanations for the employer’s actions. Examples include:
- Attendance violations predating the workers’ compensation claim;
- Performance deficiencies documented through evaluations or disciplinary records;
- Workforce reductions or layoffs affecting multiple employees;
- Violation of company policies;
- Job abandonment;
- Inability to perform essential job functions after exhaustion of leave entitlements; or
- Legitimate operational restructuring.
The New York Workers’ Compensation Board recognizes that an employer does not violate WCL § 120 when it acts for a legitimate, independent reason unrelated to the workers’ compensation claim. For example, an employer may fill a position when an employee’s prolonged absence prevents the employer from maintaining operations or discipline an employee pursuant to uniformly applied attendance policies.
Consistency Is Critical
One of the most common pitfalls in defending retaliation claims is inconsistent application of workplace policies.
Examples to look out for include:
- Whether similarly situated employees were treated similarly;
- Whether disciplinary policies were followed consistently;
- Whether managers documented performance issues before the workers’ compensation claim arose;
- Whether there were deviations from standard human resources procedures; or
- Whether communications regarding the employee’s claim were appropriate and professional.
Inconsistencies frequently become the claimant’s strongest evidence of pretext. Conversely, employers that can demonstrate consistent treatment of all employees often possess a compelling defense.
The Importance of Timing—But Not Overstating It
Claimants frequently rely on temporal proximity, arguing that because discipline or termination occurred shortly after filing a workers’ compensation claim, retaliation must have been the motivating factor.
While timing may raise suspicion, timing alone rarely proves causation. Instead, employers should focus on establishing:
- When the performance or conduct issues began;
- Whether disciplinary processes were already underway;
- Whether decision-makers had knowledge of the workers’ compensation claim;
- Whether objective business circumstances necessitated the employer’s action; or
- Whether similar decisions were made involving employees who had not filed claims.
Contemporaneous records created at the time a business decision is made and before a retaliation claim is filed often prove to be decisive.
Separating the Workers’ Compensation Claim from the Employment Decision
Employers and carriers should also ensure that claims personnel, supervisors, and human resources departments maintain clear separation between administration of the workers’ compensation claim and employment decisions.
Documents or testimony suggesting frustration with an employee’s workers’ compensation claim, lost-time benefits, medical restrictions, or litigation posture can undermine an otherwise defensible employment action. Statements such as:
- “This claim is costing us too much money,”
- “We need to get rid of this workers’ comp employee,” or
- “He’s been out too long because of his claim”
can transform an otherwise legitimate personnel action into a difficult retaliation defense case.
Early Investigation Is Essential
Upon receiving notice of a WCL § 120 claim, employers should promptly:
- Secure all personnel records;
- Preserve electronic communications and text messages;
- Identify decision-makers involved in the employment action;
- Establish a clear chronology of events;
- Review prior disciplinary actions;
- Determine whether similarly situated employees received comparable treatment; and
- Prepare witnesses before memories fade.
- Respond to any claim received from the Workers’ Compensation Board
Early investigation frequently uncovers legitimate explanations that may not be apparent from the claimant’s allegations alone.
Legal Help For Workers Comp Retaliation Claims
Retaliation claims under WCL § 120 present unique challenges because they shift the focus away from medical evidence and onto employer motive. Nevertheless, employers with documented business reasons, consistent personnel practices, and disciplined communication strategies often possess strong defenses.
The best defense against a retaliation claim begins long before litigation: maintaining thorough records, applying policies uniformly, and, whenever possible, ensuring that workers’ compensation claims are managed separately from employment decisions.
Responding to a claim in a timely manner can prevent unnecessary expenses and litigation, and even an order to reinstate an unwanted employee. Our office has successfully represented employers in these situations. We welcome any questions you might have on this topic.