Workers filing a compensation claim for injuries under the Longshore & Harbor Workers Compensation Act, or, by extension, the Defense Base Act sometimes fear retaliation or
retribution from their employer. Sometimes workers are fired, or threatened with firing when they file a claim. Sometimes their management refuses to accept a claim form. The law is clear that this activity is prohibited; firing an injured worker in retaliation or retribution for filing a compensation claim amounts to discrimination, and that is illegal.
If you have filed a compensation claim for an injury under the Longshore & Harbor Workers Compensation Act or Defense Base Act and then been fired, or threatened with firing, you need legal assistance immediately. Experienced LHWCA/DBA attorneys can help you with these issues; it is unwise to attempt to pursue this on your own.
What the law says on filing a compensation claim
Section 948(a) of the LHWCA states, “It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter.” Further, financial penalties apply to the employer (not the insurance company) if the district director finds that this has occurred. Finally, the law provides that the “employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination.”
What do you do if this has occurred? You know that the firing was illegal, but what now? You are injured, out of work, and not sure what to do next.
How to proceed if you have been the target of this discrimination
The first thing you should do is retain an experienced LHWCA/DBA attorney. They will know how to proceed with this claim, and how best to protect your rights. The District Director for the Department of Labor will investigate the claim to open the inquiry. They will then give an informal recommendation. If either party disagrees with this recommendation, they may have the matter heard by an Administrative Law Judge in a formal hearing.
Similar to a civil trial, where the plaintiff must meet the burden of proof by a preponderance of the evidence, the burden of proof for this hearing is on the claimant. The injured worker must prove that the employer engaged in a discriminatory act motivated in whole or in part by the intent to retaliate for filing the compensation claim. Even if the motivation for firing is only partly because of the compensation claim, that may be a violation of Section 948 (a).
The evidence presented at this hearing usually consists of work records and witness testimony. The Administrative Law Judge will look at such things as the timing of the firing in relation to the filing of the claim. Obviously, if the firing and the claim are close in time, that supports the claim of discrimination. The ALJ is looking for the real reason the worker was fired, and may look at whether the fired worker was treated differently from other workers in similar circumstances. Of course the employer is not going to admit that they fired the injured worker for filing a compensation claim, they know that is an illegal act!
The employer must show that the firing was in no way related to the worker exercising their rights under the LHWCA, that it was for other valid reasons and not just a cover for the discrimination.
The ALJ is entitled to determine credibility of the witnesses and circumstantial evidence in making the determination. Often there is a lot of disputed testimony falling under the “he said, she said” category, as well as suspicious timing and inconsistent application of company policies. Taking all the evidence together, the ALJ will make a ruling. This usually consists of finding the company guilty of discrimination and reinstating the employee with either back pay or the appropriate disability (not both) or making a finding of no discrimination. As with other issues under the LHWCA, the parties may settle at any time with the reviewing officer or ALJ signing off on the settlement.
If either party is unhappy with the ALJ ruling, they may appeal it to the Benefits Review Board and then to the appropriate United States Court of Appeals. As you might expect, this may take some time, and professional legal help is strongly advised.
Don’t allow employers to get away with discrimination for asserting your rights under the LHWCA/DBA
If you have filed a compensation claim and then been fired, or have been threatened with firing, you need to act immediately. Do not allow the employer to discriminate in this manner. Seek professional legal help, those attorneys experienced in LHWCA and DBA cases as soon as possible to preserve your rights.