Retaliatory Discharge

The only time a worker in the State of Alabama is protected from wrongful discharge under state law is when they are terminated in retaliation for making a claim for an on the job injury.

The law in the area of retaliatory discharge has been changing over the past few years. It is important to understand how it has changed because there is a very real flaw in our system that has been created by appellate judges who have either business interest partiality or they simply have not represented real people with real problems.

When someone becomes unemployed they file for their unemployment to tide them over while they look for a new job. The employer has the right to challenge the payment of benefits from the state. If a challenge is made, either verbally or in writing, an informal hearing before a hearing officer who is neither a lawyer nor a judge is held. In this hearing the parties are entitled to present evidence although the rules of evidence are not followed. These hearings take place quite soon after a job separation.

The employer will have participated in many of these hearings in the past and will often have a lawyer and always have witnesses lined up and a manager present to present evidence to prevent the unemployed worker from obtaining unemployment benefits. On the other hand, the ex-employee with limited resources and no idea what the issues or stakes are, is merely along for the ride. Unemployed people usually can’t afford to employ an attorney and when the hearing is over the result is, unsurprisingly, not favorable.

The Alabama Supreme Court ruled that this hearing is the equivalent of a full-blown lawsuit and if the unrepresented employee loses than he is forever barred from bringing a retaliatory discharge case because he has already been found guilty of misconduct.

On the other hand, the court has ruled that this does not apply to the employer if the employee wins. It only applies if the employee loses.

If you have had an on the job injury and you are terminated because of your on the job injury, do not apply for your unemployment benefits without advising your attorney or consulting with an attorney. Even though your employer may have a pattern and practice of retaliatory discharge, once you lose your unemployment compensation hearing you can not go back and fix it.

Firing an employee who was hurt on the job is morally and legally wrong. It not only hurts the injured worker further, but also prevents other workers who in the future sustain an injury on the job from filing their claims for fear of losing their jobs. If you are hurt on the job and your environment changes, hostility increases, your duties change, etc., make notes of names and dates and keep these records for your attorney.

Buckle up, wash your hands, wear your mask and your referrals are appreciated!

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