When can I sue my employer?
North Carolina’s Worker’s Compensation Act prohibits many kinds of lawsuits against an employer. The Act is designed to be the exclusive remedy for employees against employers regarding on-the-job injuries. The Act creates a no-fault system, so (with a few exceptions) if you are hurt on the job, a worker’s compensation claim is your only remedy against your employer, regardless of whether the employee or the employer was at fault in causing the injury.
One exception to the exclusive remedy provision of the Work Comp Act is called a Woodson claim, which is so-called because of a 1991 North Carolina Supreme Court case by the same name. In that decision, the state Supreme Court ruled that an employer can be sued by his employee in civil court outside of the Worker’s Compensation Act if the employer intentionally engaged in conduct, knowing that the conduct was substantially likely to result in serious injury or death. In numerous decisions since Woodson, the courts have narrowed the exemption. Therefore, in general, you can presume that a Worker’s Compensation Claim will be your exclusive claim against your employer. However, see here:
for discussion of a fireworks explosion case that we successfully handled.
It is important to note, however, that this exclusive remedy likely does not apply to other entities besides your employer. So for example, take a worker who is injured in a warehouse. There may be numerous different entities in that warehouse performing work that day. If an employee is injured in that warehouse, the injury may have been the fault of several different businesses besides the one the employee works for. The Work Comp Act typically would not preclude suing those businesses for their share of fault in causing the injury. Also, the Work Comp exclusivity preemption would not protect the manufacturers of any products. So when we talk to an injured worker, we are always on the lookout for other potentially liable parties. Again, taking a worker in a warehouse, if he is injured by a forklift, we would investigate and here are some of the factors we would consider: 1) Was the forklift manufactured in a manner that made it unsafe? 2) was the forklift owned by someone other than our client’s employer? If so, was it maintained and serviced properly? 3) Was the forklift driven by an employee of another company from my client? 4) Was the company that owned or managed warehouse doing everything it could to ensure people who operated forklifts on their property were properly trained and acting carefully?
There are also some examples of injuries on the job that could fall outside of the Worker’s Compensation Act. An employee who is the victim of discrimination or sexually harassed would typically not be considered to have suffered an “accident on the job” and therefore could not present a worker’s compensation claim. Instead, these employees would want to pursue a claim against their employer under federal law. There are very strict timeframes under these federal claims, and persons considering pursuing them should consult an employment attorney promptly, and probably need to contact the Equal Employment Opportunity Commission. Our firm typically does not handle employment law cases, but we can usually direct prospective clients to an attorney that can assist them.
Understanding the REDA Law – How it Applies
Hand in hand with worker’s compensation claims is the REDA law: the Retaliation in Employment and Discrimination Act. REDA provides protections for employees who perform protected duties and acts. The protections are limited, as North Carolina remains an at-will employment state. But REDA does prohibit an employer for firing an employee for taking certain actions which are not only legal, but legally required. For example, if you receive a jury notice, you are required to appear for jury duty, and your employer typically cannot fire or punish you for doing what you are legally required to do. Similarly, an employer cannot fire you for properly filing a worker’s compensation claim, because the law states that if you are injured on the job and must miss time from work, you must report the injury to the North Carolina Industrial Commission.
Now, it is important to remember that the REDA act is limited and does not alter the fact that we are an at-will state. Just because you report an on-the-job incident does not make you immune to all the other rules of your workplace. If your employer has other reasons to fire you, they can do so. They can even lay you off for normal business reasons, just so long as their choice of firing you was not motivated by the intent to retaliate against you for filing a Worker’s Compensation claim. It can be very difficult to know and prove an employer’s motivations, so the REDA law is a less-than-perfect protection.
It is also important to recognize that REDA and the Worker’s Comp Act typically will not prevent your employer from filling your position with another hire while you are out of work. Federal law, the Americans with Disability Act, provides some such protections, but only applied to employer large enough to fall under its protections. Many companies are too small to be covered under the ADA. And even companies covered under the ADA are only required to make “reasonable accommodations” to employees. Your employer is expected to make reasonable modifications to your job duties or schedule, but is under no requirement to redesign the essential job functions of your position. And the ADA only requires employer to hold jobs available for injured employees to return for certain periods of time, and not indefinitely. Therefore, if an employer decides to fill the position of an injured worker while he is out on Worker’s Comp, they can usually do so safely, so long as they are not doing so in order to punish the injured worker. However, most employers recognize that firing an employee while they are out on Worker’s Comp might be legal, but may not be wise. Most employers find it wiser to modify a position and bring an employee back to work in some capacity than to pay that employee worker’s comp benefits to sit at home and provide no benefit to the employer.
Employers can also be sued by employees for violation of overtime rules. North Carolina does not have the protections most states do in terms of requiring employees to be provided with brakes, or limiting the length of work shifts. But North Carolina state and United States federal law does provide that employees who are not “exempt” (for example, salaried managers) must be paid overtime if they work more than 40 hours per week. This is a very complex area of law, and persons who believe they have been wrongfully denied overtime should consult our office for a free consultation.