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Wrongful termination under workers comp in NC? North Carolina

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  • Wrongful termination under workers comp in NC? North Carolina

    My husband worked for a construction co. for 3.5 years. He was injured on the job in january, resulting in a hernia. He told his supervisor who "forgot" to let the office know. My husband did not miss any work until his hernia surgery on March 12th. He was out of work for 4 weeks. Upon returning to his job, he learned that the claim had not been filed by his employer because he did not inform the office.
    Skip forward to April 21st when he was injured on the job a second time. He fell and cracked his foot in 2 places. He missed 4 days of work due to this injury. The company paid him and the doctor bills for this 2nd injury. He was able to return to work on light duty but still under doctors care which a follow-up appointment on May 7th. On May 1st the owner called him into his office. He fired him for his absences and also for negative surveys from homeowners. All of his absences were related to these 2 injuries. He also has nothing to do with the homeowner surveys. These are reflective of his supervisor and the overall satisfaction of the home.
    The day after he was fired, I called the office to find out why the 1st claim was not submitted. She stated that the owner had told her not to file it because of the length of time and also because he had not let them know personally. I told her that he had told his supervisor and that he admitted that he "forgot" to let them know. She told me she would talk to the owner and get back with me. A few days later she called me back and told me that they would file it and see what the insurance co said.
    Now a few weeks later, we have been contacted by a representative of the W/C co and they are going to cover it. The doctor bills have been paid and they are paying those 4 weeks of lost wages.
    When my husband was fired they paid him severence pay from 5/2 thru 5/30.

    Do we have a retaliation claim or wrongful termination claim?
    What do we have to gain by persuing this?
    Thanks for any help and responses.
    Mom of 3 in NC

  • #2
    You have a bunch of issues here and it was presented in a very confusing manner but I'll do my best.

    Did FMLA apply? Did he work at least 1250 hours in the past year and were there at elast 50 employees in a 75 mile radius? How much time did he miss between the 2 injuries?

    Did your husband file a claim with the WC carrier for the hernia when it happened? Or just tell someone at the employer he was injured? Why did you wait until after he was fired to inquire about the first claim as this was months after the fact?

    Did your husband sign anything in exchange or severance? It is very rare for an employer to just pay it and not require something in return.

    What was his job and how was it related to the surverys? Were the surveys asking about work he had performed?
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

    Comment


    • #3
      My husband worked full time (40 hours per week) for 3.5 years at this company. There are 50 employees within a 50 mile radius. When my husband returned to work in April, we thought they were processing the 1st workers comp claim. When he was injured the 2nd time (4/21), we found out they had not filed the first claim. They did pay him for the 3 days he missed work on the second claim. He was then fired on 5/1 and thats when I questioned them (the office) about the 1st claim and found out they never filed it.
      He did not sign anything for the severence pay. His last weeks pay and the severence pay were all in the one check.

      The surveys are the overall satisfaction of the customer. There are several people in one development. The supervisor is responsible for making the customer satisfied. My husbands job consisted of picking up supplies, delivering materials, doint touch up work (paint, etc.). Therefore the surveys would not be a direct reflection of my husband, but more the supervisor.

      Thanks

      Comment


      • #4
        Whether the supervisor is ultimately responsible or not has nothing to do with holding your husband accountable for the poor surveys. If the problems were dissatisfaction with touch up work, the timeliness of deliveries or anything that related to your husband's work, it would be legal to fire him on that basis. They can fire the person directly responsible.

        You also haven't shared how much time total your husband missed from work in the past year.

        I'm not sure how someone can have surgery and not know which carrier is paying the bill. If you submitted your regular insurance card and didn't have authorization from WC nor were you receiving any pay from the WC carrier, wasn't that a heck of a tip off that they weren't covering it?

        Did your husband report the hernia in writing to his employer within 30 days as required by law? If he just told them verbally he was hurt, that is not sufficent. Sure the employer probably hould have gone back to him and prompted him to put it in writing and such but they aren't required by law to do so. Hernias are also treated very differently than most other injuries and are less frequently covered. Don't ask me why but that is the case in most every state.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

        Comment


        • #5
          The first injury really is not the issue at all. Workmans comp has now paid those doctor bills and those lost wages.
          When my husband was fired, less than 2 weeks after his 2nd injury, the owner told him it was due to his absences (on the job injuries) and the surveys. The absences were due to the 2 on the job injuries and the surveys are not a reflection of him at all.
          I feel the firing was retaliation due to the workers comp claims.
          The question is do we have a wrongful termination case based upon the retaliation. The owner even told him it was due to the absences, which were all because of the 2 injuries.
          Thanks

          Comment


          • #6
            He can't be terminated for filing WC claims but he can be terminated for the surveys & other unsatisfactory work performance or for excessive absences.

            If he happened to qualify for FMLA, he can't be terminated for taking FMLA leave which is up to 12 weeks of unpaid job protected leave unless he would have been terminated anyway had he not taken/qualified for FMLA. (such as for unsatisfactory work performance)

            FMLA requirements: worked for employer for at least 12 mos., worked at least 1,250 hrs. for employer in the 12 mos. immediately preceding the leave, work at a location with 50 or more employees within a 75-mile radius, have a serious health condition as defined by the statute.
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

            Comment


            • #7
              Originally posted by huntergirl View Post
              The first injury really is not the issue at all. Workmans comp has now paid those doctor bills and those lost wages.
              When my husband was fired, less than 2 weeks after his 2nd injury, the owner told him it was due to his absences (on the job injuries) and the surveys. The absences were due to the 2 on the job injuries and the surveys are not a reflection of him at all.
              I feel the firing was retaliation due to the workers comp claims.
              The question is do we have a wrongful termination case based upon the retaliation. The owner even told him it was due to the absences, which were all because of the 2 injuries.
              Thanks
              Right but if he hadn't filed it as a WC claim, then it is a little hard to terminate him for filing a claim. At the point he was terminated, the first was not under WC. The law does not state that employees get "extra" time off when it is WC as opposed to when it is an off the job injury. It still falls under FMLA. Firing him for the absences is not the same as firing him for exerting his right under the WC code.

              As you still have not shared how much time total he took off that is FMLA qualifying in the past year, I can't begin to tell you whether or not the time he took off was protected or not. Your remedy if any would be under FMLA, which is administered by the DOL. If he was fired because of the surveys, then that is legal. If he was fired for taking time off under FMLA, that is not.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

              Comment


              • #8
                As I stated in the original post, beginning March 12, he missed 4 weeks of work due to the first injury. The second injury, April 21st, he missed 3 days of work, although he was still under doctors care when he was fired on May 1st. The owner did not state he was fired due to work performance but his absences and surveys. The surveys do not reflect on him at all. The quality of the house would be the framers, painters, roofers, etc.
                He was still under the doctors care when he was fired. All absences have been paid by workers comp. All doctor bills have been paid by workers comp. All absences were due to the 2 injuries, no other absences.

                Comment


                • #9
                  Did he file for or request FMLA for either of the absences? If he did and was fired anyway, that would violate FMLA and you would file a claim with the DOL. If he did not request FMLA or did not submit the paperwork if requested, then it was not protected and he could be fired for the absences.
                  I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                  Comment

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