As an employment and civil rights attorney, I can tell you from experience that no employer is happy when a worker is hurt on the job, or sustains an injury caused, or exacerbated, by work. It causes slow-downs, absences, extra work for Human Resource and Benefits people, shifting around of employees to cover the injured employee’s work, and, of course, increases in workers’ compensation insurance rates.
Then, on the other hand, that’s part of the “cost” of doing business. Being a business person in New Jersey, or anywhere else in the country, carries a lot of benefits. One of these is the right to call the shots as you see fit as the owner of your company and to make the sort of living that starting a business entitles you to make, once you’ve made a success of it. It seems fair, therefore, that there are some balances to those benefits.
Some of those balances, I’ve discussed in other blogs. These include the right of workers to be free from sexual, racial and other types of illegal harassment and discrimination, the right to be free of retaliation for whistleblowing, wage and hour rights under both the New Jersey Wage and Hour Law and the Fair Labor Standards Act, and others.
Yet all of those rights are “statutory.” This means that they’ve been created, or at least recognized formally, as a result of legislative (or in the case of federal law, congressional) action. The Law Against Discrimination, the Conscientious Employee Protection Act, the New Jersey Wage and Hour Law, the New Jersey Family Leave Law, the Federal Family Medical Leave Act, the Federal Fair Labor Standards Act, and others, are all “statutes” passed by legislative bodies. These “statutory” rights are almost universally better understood by lay people (both employers and employees) than are less well-known “common law” doctrines, that can be quite a bit older, and less clear.
I’ve mentioned in other blogs, “common law” comes to us from England, the origination point for most of the colonists who first settled the Americas. Those colonists brought with them many things from England, one of which was the tradition of having judges or nobility sit in judgment over legal issues, after which they’d write their opinions down, discussing the reasons for their findings. These opinions gradually took on more and more formality over the centuries and more and more compulsive power over future decision makers facing the same facts. In other words, if a judge was going to decide an issue that had been decided by a judge before, why reinvent the wheel, when the judge can simply read the opinion of the other judge and find likewise?
This tradition of “common law” came over with the colonists and firmly entrenched itself in the Americas.
It’s only been, for the most part, in the 20th Century, and really, only the second half and later portion of the 20th Century, where lawsuits and formal claims between citizens became more “statutorily” oriented than originating in the “common law.”
So, as you can see from the discussion of the statutes above, many of the employment rights that citizens enjoy in New Jersey originate from either federal or state “statutes.” Yet, one of the rights that citizens enjoy, and is among the most frequently offended, doesn’t originate from statutes at all, but rather from that “common law” we’ve just discussed.
The right I speak of relates to the start of this blog, in other words, workers’ compensation benefits.
In New Jersey, we have a workers’ compensation law that provides for a “schedule” (list) of benefits addressing nearly every conceivable workplace accident, illness or injury. This “schedule” of benefits pays a certain amount of “indemnity,” along with the right to certain medical care, if a worker becomes ill, suffers injury, or is otherwise hurt on the job. These rights apply regardless of why the injury occurred. They are, what we traditionally call in the law, “no-fault” benefits. Therefore, except in certain narrow circumstances, even when an employee carelessly injures himself during the course of the job, the employee is entitled to workers’ compensation benefits.
This system originated in the 20th Century to replace the old antiquated system whereby workers, when hurt on the job, would have to sue their employers to recover damages. The employers had the money, the workers didn’t, and it was very hard for attorneys to represent workers in an effort to obtain damages from the employer. Most employees simply couldn’t afford the lawyers at the time, and this was in the days before contingencies. In addition, the workers’ compensation system was a way to “fix” the unfortunate results that attended workers becoming hurt who couldn’t prove that it was someone else’s fault.
Nowadays, the workers’ compensation system has been in place for a very long time and it’s a respected and solid part of our employee/employer law.
Yet, not every employer respects this. Some employers, unhappy for the same reasons as set forth at the beginning of this blog, decide to take their revenge. They retaliate against the workers by firing, demotion, stripping of job responsibilities, telling the worker that when they return from leave there isn’t a job for them, by being unwilling to discuss reasonable accommodations to accommodate temporary or permanent disabilities, by cutting of hours, reassignment, changing shifts or work locations, and the like.
Not all of these are equally devastating to each employee, but you can appreciate how, if a worker has certain child care and other familial responsibilities that are dependent on time, such an employee could be discomforted by a shift change or work location change that essentially forces them to leave the job or sacrifice their family obligations. Of course, these retaliation claims have to be proven. There has to be some evidence that the employer is doing what they’re doing in retaliation for the worker pursuing their workers’ compensation benefits, as opposed for other legitimate, non-retaliatory reasons.
The two cases in New Jersey that created, or at least recognizes common law doctrine, are the cases of Pierce v. Ortho Pharmaceuticals, Inc., which created the idea of a discharge in violation of “public policy,” and the case of Lally v. CopyGraphics, Inc., which applied the Pierce determination to workers’ compensation benefits.
The case law protects anyone who exercises, pursues or otherwise requests their worker’s compensation rights. Therefore, understand that this doesn’t mean that the person has to file a claim in order to obtain protection of the Pierce and Lally cases, from any retaliation they may suffer. Even asking about treatment, indemnity, or other workers’ compensation rights, triggers protection.
Does this mean that a worker is protected after they exercise these rights no matter what else they do in the workplace? Of course not. The employer still has to follow the rules, still has to come back after they have their family leave time (if applicable), and still has to do the right things as any other employee would.
But if the employee does behave appropriately, and they are singled out unusually for discipline, write-ups or other retaliation that isn’t levied against other employees who act the same way, then once again, we might be looking at a retaliation situation.
It’s important for employees to know these rights, and even more important for employers to know these obligations. It’s never convenient and it’s never fun to have an employee file a workers’ compensation claim, but after all, that’s why you have the insurance. It’s the cost of doing business in a state that’s good for business and good for workers.