'Your Job Depends on it' Comment doesn't Establish Discrimination Charge

29 Aug, 2022 Frank Ferreri

                               

Augusta, ME (WorkersCompensation.com) – When a worker claims discrimination under workers’ compensation law in Maine, whether or not he’s pursued a claim could make a difference.

Such was the case in Bailey v. Paul G. White Tile Co. Inc., No. 20-0027 (Me. W.C.A.B. 08/24/22), where a supervisor’s derogatory comment wasn’t enough to show discrimination for a worker who didn’t file a claim after complaining about his back problems.

Back Pain, No Claim

A worker for a tile company was on his way to lunch when he slipped on a piece of snow-covered plywood on a client’s premises and nearly fell. He reported a low back injury to the company’s human resources coordinator, but he did not seek medical treatment, miss time from work due to the incident, or fill out paperwork to report a workers’ compensation claim.

While at a Christmas party, the worker and one of the company’s owners discussed the worker’s back, with the worker indicating that it would improve with rest. Allegedly, the owner responded, “It better. Your job depends on it.”

Roughly six months later, the worker told the owner that he would be taking a leave of absence for back surgery and that he had secured short-term disability benefits as income while he recovered. Nine days later, the owner called the worker to terminate him.

The worker filed a claim under state law, arguing that the company discriminated against him by terminating his employment after he told the owner about his plans to undergo surgery for a work-related condition. The company countered that the termination was performance related.

An administrative law judge concluded that the worker failed to establish that the company discriminated against him, prompting the worker to appeal to the Workers’ Compensation Appeals Board.

'Asserting'

Under Maine law, an employee may not be discriminated against by any employer in any way for testifying or asserting a workers’ compensation claim. In a discrimination action, assertion of a claim means an assertion of a right.

On appeal, the reviewing judge agreed with the ALJ that the worker did not assert a claim or right and that the company’s motivation was not rooted substantially or significantly in the worker’s exercise of his rights.

The judge highlighted that, although the owner made the statement that the worker’s job depended on his back getting better, six months had passed between that statement and the termination, during which time the worker took no action to purse a workers’ compensation claim.

Thus, the WCAB affirmed the ALJ’s decision.

Forms, email updates, legal, regulatory, and compliance information from Maine and 52 other jurisdictions across the U.S. can be found on WorkCompResearch.com.


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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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