The Short Answer
Unfortunately, the answer is “it depends.”
An Oregon statute protects injured workers from an employer’s retaliation. However, like any statute, there are limits.
Let’s set this up with the general rule, and then go from there.
Oregon is an “At Will” State
Oregon is an “at will” state. This means that unless you have a contract or agreement with your employer, you serve at the employer’s pleasure. The employer can fire you for any reason or no reason at all.
The exceptions occur with federal and state statutes that prohibit certain types of discrimination. There are also some protections that come from Court of Appeals and Supreme Court made law. Some federal statutes address age, gender and racial discrimination. These statutes apply to some, but not all employers. The fine print tells us that thee statues apply only to employers with a minimum number of employees.
Oregon has its own civil rights statutes. The protections range from housing, employment, and on the job injuries.
One of these statutes protects injured workers from an employer's retaliation against the injured worker, but it does not end there.
However, keep in mind that suffering an on the job injury does not totally shield you from employer discipline or termination. If you were under the influence of drugs or alcohol or getting into a physical fight or altercation with a coworker when injured, the employer may still fire you. This statute applies only to situations where the employer targets the on the job injury as the reason for discrimination.
What the Law Says for Injured Workers
The statute's protection is still a broad protection from retaliatory conduct and includes workers that may not actually file a Worker’s Comp. claim but “invoke” the workers’ compensation system. A good example would be a worker who makes an inquiry about filing a claim, but does not follow through. The employer can not target this worker.
Workers who are not injured on the job, but participate in the workers’ compensation system by testifying as a witness are also protected.
So, it's not just injured workers, people asking about filing a claim, and workers who testify at a Workers' Comp. hearing are protected.
What is considered discrimination is also broad.
The statute says that an employer may not discriminate against the worker “on any hire or tenure of any term of the employment relationship because the worker applied for benefits . . . “
When we talk about “hire or tenure of any term or condition of employment,” this covers just about every term of an employment relationship. That can include hours that are scheduled, the type of work scheduled, the location of the work, the rate of pay, and ultimately getting fired.
Another key aspect of this statute is that the discrimination has to be “because of” applying for benefits, invoking the workers’ compensation statute, or testifying on behalf of an injured worker, or even an employer and a workers’ compensation case. Basically, this means that the injured worker must show a connection between the discrimination and the filing of a workers’ compensation claim or any other protected behavior in the statute.
- The statute protects not just workers who file a claim, but those who may just ask about it.
- The statute protects other workers' who testify at a hearing.
- The statute applies to any term of employment (hours, wages, scheduling), not just job termination.
What Employers Do (Sometimes)
Most employers, in our experience, do the right thing. They may not be thrilled about an employee with a workers’ compensation claim but will not outright violate the discrimination statute. However, some employers who are hostile to the claim will attempt to get around the statute and push our client out the door.
Some employers will look for other reasons to fire or discriminate against an injured worker. Behavior that technically violated a work rule may no longer be tolerated. Years ago, we represented a millworker who drove to work every day in an old pickup truck. It burned oil, and occasionally he would go into the oil room and take a Dixie cup full of oil to put in his truck. Nobody cared until he was injured on the job. Then, when he went to get some oil, he was fired for theft.
Employer's may also invent other reason for cutting hours, reducing an hourly wage, or terminating an employer. The law is always changing, but courts have ruled that even if the termination is for a valid reason, there could be a mixed motive in the reason for a change in job status.
Other times, the employer will “push the envelope,” and while not blatantly discriminating against the worker, make the work environment intolerable, forcing the injured worker to resign or quit. There may be a claim for discrimination, but it could be a challenge to prove.
Another tactic we see is employers violating modified work restrictions. Sometimes an employer will offer an injured worker a modified job to get them back to work earlier. There are many requirements for a valid modified job offer, and many times, its a win-win situation.
But sometoimes, employers violated the modified job restrictions, forcing the worker to perform work beyond the outlines and the work restriction. We have seen positive results by notifying the workers' comp. claims adjuster that the employer is doing the wrong thing. A smart adjuster knows that an employer pushing an injured worker beyond their limits may end up creating yet another on-the-job injury claim, and put a stop to this abuse.
What You Can Do
The best thing you can do is “keep your nose clean” as they say. Pretend that you have just started working for the employer and assume that even the slightest workplace violation will not be tolerated. If a supervisor or manager is asking you to perform work that is beyond a modified work release, contact your adjuster as soon as possible, or if you have a lawyer, call the lawyer. Also, document the work you were being asked to perform, and report it to your doctor as well.
If you intend to make a claim for an unlawful employment practice like this, you can file what is called an “administrative” claim with the Bureau of Labor and Industries (also called “BOLI”). BOLI investigates the case, and if it decides that it will not pursue the case further, you can then file a claim in court within 90 days after the mailing of the notice from BOLI that it does not intend to further pursue the matter.
Another option is to skip the administrative claim, and file a lawsuit directly against the employer within one year of the date of the discriminatory conduct.
There are administrative rules that further flesh out how these claims were, and we advise you to confer with an attorney if you feel you have a claim. There also may be other time limits at play, especially when the employer is a public agency.
Although we do not handle employment matters, we often worked side-by-side with employment lawyers when our workers’ compensation client has employment claims arising from the on-the-job injury. Contact us with questions, and we can provide referrals to good employment lawyers, or at the very least, point you and the right direction.