It is illegal for your boss to fire you for filing a workers compensation claim in North Carolina. Employees are protected from this sort of retaliatory action by the North Carolina General Assembly’s Retaliatory Employment Discrimination Act (REDA). Activities that are protected by this act include occupational safety and health complaints, wage and hour complaints, and workers compensation claims.
The REDA specifically bars employers from discharging or discriminating against employees who perform or threaten to perform certain activities. These activities include filing a claim or complaint; initiating an inquiry, investigation, inspection, or proceeding; and providing testimony or information regarding the North Carolina Workers’ Compensation Act.
There are also common law protections offered by the state of North Carolina for employees who engage in protected actions.
What Are Your Options?
The North Carolina Department of Labor, Employment Discrimination Bureau (EDB) is available to investigate claims of employer retaliation. If you have been retaliated against for a protected action, you can file a complaint with the EDB within 180 days of that action. The EDB will investigate and determine whether or not the action was illegal.
If the EDB investigation does not find in your favor, then you will receive a right to sue letter to pursue the matter on your own. If the investigation does find in your favor, then the EDB will attempt to negotiate and mediate to resolve the matter. The EDB may also file a suit on your behalf or issue a right to sue letter for you to pursue the matter on your own, if mediation and negotiation are unsuccessful. You can also request a right to sue letter after 180 days from the initial complaint. You have 90 days to file a lawsuit with a right to sue letter, from the date that it was issued.
How to Prove Retaliation
If you file a complaint with the EDB for a claim of retaliation, you must be able to show that employer retaliation has occurred. You must prove that you are an employee who is entitled to workers compensation benefits, that you have filed a workers comp claim, that you suffered from an adverse employment action (such as being fired), and that the adverse action was in retaliation for filing the workers compensation claim.
Employers may also retaliate in other ways, such as reducing your pay, giving you a demotion, altering your position and work responsibilities, or taking unwarranted or unreasonable disciplinary actions. The most difficult part of showing retaliation is demonstrating that the adverse actions were taken because you filed a workers compensation claim.
To prove your case, you will need to be very specific regarding the circumstances. For one thing, you will need to detail the time between the filing of the claim and the retaliatory act. If the action quickly followed the filing, then this will support your claim that it was retaliation. You should also document any angry or disappointed communications from your employer, which will also support your case. You can also demonstrate that your termination of employment or other adverse action was in opposition to usual practices at your place of employment. If there are previous cases where employees were retaliated against for filing claims, then this can also help your case, establishing a history of similar behavior. Finally, any inconsistencies in your employer’s explanation for the retaliatory action can also support your claim.
Any time that you suspect that you have been retaliated against for filing a workers compensation claim, you would be wise to contact a North Carolina workers compensation attorney. Your lawyer will help you to determine the strength of your case and what steps you should take next. There is a three year statute of limitations in North Carolina for filing a retaliation lawsuit. If you do not file your suit within this time frame, then you will forfeit your right to do so.
Minors and Incompetent Adults
The same laws and workers compensation benefits apply to employees who are minors and employees who are disabled. If permanent or long term (52+ weeks) injuries occur, then these individuals are entitled to the same workers compensation benefits as other employees in similar positions, regardless of age or competency.
No statutory time limitations run against the minor until a trustee is appointed to represent his interests. In these cases, there are two ways that a guardian may be chosen.
The primary difference in cases with minors and incompetent adults is that there is no statute of limitations in effect until a trustee is appointed to represent the interests of the employees. A guardian ad litem may be appointed by the Industrial Commission to pursue a claim on behalf of the employee or a general guardian/guardian of the estate may be appointed by the county clerk.
An appointee of the Industrial Commission cannot receive cash compensation on behalf of the employee, though court appointed guardians can, as can the Clerk of the Court, a trustee with power of attorney, and (in some cases) parents of minors.