Hello There, Guest! Login Register
Index    |     Search    |     Members    |     Help

Thread Rating:
  • 0 Vote(s) - 0 Average
  • 1
  • 2
  • 3
  • 4
  • 5
Retaliation
#1
I understand that Worker's Comp. is a state regulated program, my question is because Michigan is an at-will employer, how does one prove retaliation or discrimination? Here is the scenario, a coworker of mine was hit by a fork lift and was severely injured (he is a superintendant). Under the ADA the employer reasonably accommodated him with his restrictions; however, because of his lack of mobility during the winter he slipped and fell on his shoulder, causing injury according to his MRI needing surgery. The employer contacted him yesterday, stating that he needs to fill out FMLA papers so his FMLA can run concurrent with his comp case. Past practice shows that the employer has never forced this procedure before, so is the employer doing this so after his 12 weeks of FMLA they can eliminate his position as superintendant and being an at-will employer terminates him? And if so because this is a worker's comp issue, doesn't it relinquish any legal obligations or payouts from the company? And then because his mobility is still limited due to his first accident, wouldn't he still fall under the laws of the ADA and the company still be obligated to either settle with him or make accommodations within reason?
 
Reply
#2
Your confusing yourself here.

First off it's the employers choice to use FMLA. If they decided to use it now, it must be their choice to do so.

If there isn't anything in the Company police (handbook) saying different, it is again legal.

Now, if his/her doctor states they need to be off work, then they have 12 weeks of possible secured employment. After 12 weeks the employer is allowed to hire someone on. But, even before the 12 weeks is up, the employer can hire someone to fill in.

Once released back to work, if before the 12 weeks of FMLA, the employer reviews the doctor's restrictions, and decides if they can make the accommodations or not. If they can't then this person might stay on work comp TTD payments, or even Vocational Work Rehab to find new emplyment.

All to some of these issues fall in before the ADA issues.
Reply's are intended solely for informational purposes. They are based on personal opinions, experience, or research and are "not to be taken as fact or legal advice", otherwise, always consult an attorney or a doctor.
 
Reply
#3
Wow, Those surely are a lot of Questions and Issues. I'm Sure Someone May take a Stab at some Answers for You, but I would Suggest Your Friend Retain an Attorney that Specialized in w/c. Welcome to the Forum, and I Hope all goes Well for Your Friend.
I Wish Everyone in the World would Take just One Minute to Take a Deep Breath and Look at the Wonders around Them. Too Much Time caught Up in the Moment can Cause Us to Miss soo Much that is Good, and given Us Daily! We are just too Busy to See!
 
Reply
#4
To be honest, there is no retaliation or discrimination going on in this issue.

Questions are easy to answer though. Once we sort out, what falls first into place. And when an ADA issue falls in place.

(((Doesn't it relinquish any legal obligations or payouts from the company?))) Now that all depends on what you mean by that question. As there can be answers to that in many forms...
Reply's are intended solely for informational purposes. They are based on personal opinions, experience, or research and are "not to be taken as fact or legal advice", otherwise, always consult an attorney or a doctor.
 
Reply
#5
It is the employers choice to run FMLA ad comp concurrently and whatever their reasons for doing so as a new policy can't be known nor is there anything that your friend can do if your suspicions are correct if I understand the laws correctly. His atty is the best source of that info though/
 
Reply
#6
Cycler, I fully agree. But also, what we think a work comp Attorney can and will do is different to many that don't know. A work comp Attorney mostly does just work comp State issues. They very seldom handle any Employment Law issues. They might be able to help some with an ADA issues, but by helping that means they help the person file the Complaint with the ADA.
Reply's are intended solely for informational purposes. They are based on personal opinions, experience, or research and are "not to be taken as fact or legal advice", otherwise, always consult an attorney or a doctor.
 
Reply
#7
Bad Boy Bad Boy Wrote:To be honest, there is no retaliation or discrimination going on in this issue.

Questions are easy to answer though. Once we sort out, what falls first into place. And when an ADA issue falls in place.

(((Doesn't it relinquish any legal obligations or payouts from the company?))) Now that all depends on what you mean by that question. As there can be answers to that in many forms...

I guess my question is, if past practice shows that the company never requested such a policy, why now? And secondly, if he is technically partially disabled from the first accident, doesn't he have job security under the ADA, being that the employer is responsible for his disability; or because we are an at-will state and as long as the company doesn't discriminate they can force him out?
 
Reply
#8
racial profiling can still be within the bounds of criminal law but also discriminatory.
selective application of FMLA and ADA protections can be discriminatory.
evidence sufficient to prove a pattern of discriminatory business behavior varies with the jurisdiction.
finding an atty willing to take on the burden will be the biggest obstacle to litigating it.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
Reply
#9
Just My thoughts on Your Last Question. I am in an "At Will" State also, and when an Injured Worker is Healed as Best as They are going to be and Placed at MMI (Maximum Medical Improvement), and if the Employer doesn't have a Job that fits within the Injured Workers Description They can be told a Job is not available under Their Restrictions. At that Point there may be Vocational Rehab Training or Rehab Monies available for the Worker to be Retrained, or a Settlement, or the Worker can Appeal the MMI Decision and Continue to Fight if They feel They are not Healed Fully. There are so Many Variables, I just wanted to Give You a Few. I Hope this Helps.
I Wish Everyone in the World would Take just One Minute to Take a Deep Breath and Look at the Wonders around Them. Too Much Time caught Up in the Moment can Cause Us to Miss soo Much that is Good, and given Us Daily! We are just too Busy to See!
 
Reply
#10
I understand the At-Will State issue. But, don't see that here.

I was thinking, and it's only my opinion. The the said employee was injured, then allowed to work with restrictions. Such person then becomes injured once again. Employer may have been able to work through prior restrictions, but, now with the new injury and added restrictions that can't.

I would also think the employer knows what their doing, for as you said under the ADA, they allowed and found reasonable work for them. May just be, they don't have anything now that fits reasonable work with new added restrictions.

An employer can change, or make changes to company policy. When was the change made? Do you know when?

Past Practice may have been changed by changing company policy.
Has anyone else known to gone through the same thing. Meaning refference to Past Parctices and current issues after company policy changes?

Job security under first accident. No, not at all, doesn't apply that way. Why, because the person has a new injury, with new and old restrictions appling to them. The game changed, as the restrictions changed.

Employer is not responsible for his disability, they pay insurance to cover that.

But, here is what this employee can do. They can call your State EEOC, and ask them the same questions. They are very nice and knowledgable, and will be able to answer all this. If they feel there is a possible complaint, they will say so.

You start here, find your State and Local office;

http://www.eeoc.gov/

Here is a good link to, gives instructions;

http://www.ehow.com/how_5175187_prove-di...ation.html
Reply's are intended solely for informational purposes. They are based on personal opinions, experience, or research and are "not to be taken as fact or legal advice", otherwise, always consult an attorney or a doctor.
 
Reply
  


Possibly Related Threads...
Thread Author Replies Views Last Post
  Retaliation for filing JShaner13 1 1,078 10-06-2017, 03:08 PM
Last Post: 1171
  employer retaliation????? hurtnND 19 8,483 09-23-2014, 12:03 PM
Last Post: 1171
  retaliation after contacting congress constantpain 4 5,087 05-06-2013, 10:37 AM
Last Post: jayne
  Employer obligation for work restrictions and retaliation kimber 2 5,985 10-07-2012, 05:39 PM
Last Post: kimber
  retaliation? Please help... Solar1s 6 5,384 02-21-2012, 04:11 PM
Last Post: lucky
  Employer Retaliation for Work Comp-Help! bhindgreeneyes 6 12,685 12-01-2011, 02:21 PM
Last Post: gaucli
  Can anyone define retaliation from employer involved with WC Faith29 10 6,359 01-22-2008, 11:39 AM
Last Post: Faith29

Forum Jump:


Browsing: 1 Guest(s)