Employers are not allowed to fire an injured worker in Alabama solely for making a claim for workers' compensation benefits. It would undermine the purpose and intent of the law if employers could merely fire an injured worker for making a claim.
The relevant section of the law is Ala. Code § 25-5-11.1 which reads as follows:
Employee not to be terminated solely for action to recover benefits nor for filing notice of safety rule violation.
No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter
The problem for injured workers comes along with the word "solely", which opens the door for the employer to provide alternative reasons as a smoke screen to conceal why they chose to terminate an injured worker. Many employers are happy to walk through that door of opportunity and start to look for smoke screen reasons to terminate injured employees to conceal the true reason for the injured employee's termination. The burden then shifts to the injured employee to prove that the stated reasons are indeed just a smoke screen to cover the employer's true intentions - removal of an injured worker.
It's even fair to visuallize the exchange as a tennis match. When we file a complaint, that is the serve across the net. The ball is now on the defendant's side. They return the ball back to our side of the court whent they provide their smoke screen alternative reasons for termination of employment. It is then our job to get the ball back across the net one final time - by proving that the stated reasons were not the true, and sole reason, for terminating the injured worker.
To make the tennis analogy more true to reality, we'd have to include a net that gets a lot higher when it's our turn to hit the ball over. If we were playing cards, we'd say the deck is stacked against the injured worker. The law reads extremely favorably for Alabama employers, and it is therefore very difficult to prove an employer retaliation claim under the Alabama Workers' Compensation Act.
Employers in Alabama have read the workers compensation laws, and they know that they are exposing themselves to legal liability through wrongful termination of an injured worker. Instead of expressly terminating the injured worker, employers will try to circumvent the rules and force the injured worker to quit or resign. This is referred to as a "constructive termination." Which means you were still terminated, it was just done in an indirect way. Signs of constructive termination include activity such as:
The word "solely" provides employers in Alabama a wide open back door to withraw through to escape many charges of retaliation. They are for this reason difficult to succeed on from a plaintiff's perspective. There are often times legitimate reasons the employer can point to for a lawful termination, particularly if they are patient.
Likewise, it is not uncommon for employers to request a voluntary resignation as part of a workers compensation settlement agreement. It is not the norm, but it is not uncommon either.
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Ideally we come across smoking gun evidence such as an internal memo or email stating management's intention to terminate the injured worker; however, such is often not the case. Instead, wrongful termination lawyers will try to prove the retaliatory discharge with the totality of evidence that points to the notion that you were terminated unlawfully. Ways this can be proven are numerous, and may vary depending on the facts of your case, but they can include things such as:
Retaliatory discharge claims are tried before a jury. Claims for Workers' Compensation benfefits are tried just before the judge, without a jury.
The average civil lawsuit takes 18-24 months to fully unfold. Each case is different, and depending on your facts, and how busy the courts are in your particular county, your case may move faster or slower than average.
The Employer Retaliation lawsuit starts when we file a Complaint. It needs to be within two years of your termination. Here's a rough outline of the Employer Retaliation lawsuit process:
Mediation: Employer Retaliation claims often settle through either negotiations of the parties or through a process known as Mediation. Mediation is a formal settlement meeting. It is usually done in an office. I will be in one conference room with you, and the defense lawyer and his or her client will be in another conference room. A third party known as a Mediator goes back-and-forth between the two conference rooms and communicates offers from one party to another.
Mediators are a paid service. We split the cost with the defense, although many times we can get them to agree to pay for the mediator if a settlement is reached. Mediators are knowledgeable about the law, and can help to evaluate the strengths and weaknesses of both parties involved in the mediation.
Mediation is voluntary, even if participation is mandatory. We cannot force a defendant to pay anymore money than they are willing to pay at mediation. That is what trial is for. Mediation is an attempt to reach a voluntary agreement. Each party has a degree of control: The defendant controls how much money they are willing to offer; the plaintiff controls the "Yes" or "No."
Negotiation: At any point in the process your workers comp claim can settle. If you claim cannot settle prior to filing a lawsuit, then you typicall don't get full settlement value unless we proceed at least through the point of your deposition, and often times further. On average that is somewhere around 18-24 months. But, everyone's claim is different, many take longer than 24 months, and there are ways to make it go faster than 18 months if things work in our favor. Your claim certainly does not have to be average. To tell you more about your particular claim, I would have to know more about your case. You are invited to call me: (205) 335-4190 or complete one of my contact forms and I will reach out if I think I can help you.
Fees for Employer Retaliation lawsuits are handled on contingency fee basis. The rate is set on a case-by-case basis. The good news is that you don't have to pay me anything out-of-pocket. The only way you pay me is out of your recovery.
In a Contingency Fee situation, I usually will pay case expenses on the front-end on the condition that you agree to pay me back out of any recovery from your claim. Expenses commonly include:
I try not to incur fees on your behalf unless they are necessary, but, you can see how Employer Retaliation claims that go to trial can incur tens of thousands of dollars in fees.
If you claim is denied, and we lose in court, then you do not owe me the expense money I spent on your claim. There is a certain amount of risk on my end involved in taking claims on a contingency fee structure, but, most of my clients are hurt and cannot work. They are in the worst position they could be in to hire a lawyer. Once I'm on your team, and standing in your corner, we either win together or we lose together.
Contact my firm today to discuss your case and to begin the process of pursuing the money damages that you need in your case.
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All Initial Strategy Sessions are Free. If you would like to discuss your options, you are invited to fill out one of the Contact Forms. I will attempt to contact you if I think I can help you.
During your Initial Strategy Session, I will asist you in creating a strategy on how to best pursue your claim, whether it be the result of a Car Accident Claim, 18 Wheeler Injury, or, Alabama Workers' Compensation Claim. At your Initial Strategy Session, you will receive the following:
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