Retaliatory Discharge is Unlawful in SC Workers Compensation Claim 

When hurt on the job, many persons are hesitant to report an injury or file a workers compensation claim for fear of losing their job. In serious injury cases, that choice is not available. But in other cases, workers have to decide whether filing a claim is “worth the risk” of getting fired. Many ask whether it is legal for an employer to fire a worker after getting injured at work. The answer is NO. Any such action is illegal and against South Carolina law for an employer to take any “retaliatory action” against an employee for bringing a workers compensation claim. For those who want to read the law for themselves, here it is for your review:

SECTION 41-1-80. Prohibition against retaliation based upon employee’s institution of, or participation in, proceedings under Workers’ Compensation Law; civil actions.

No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the South Carolina Workers’ Compensation Law (Title 42 of the 1976 Code), or has testified or is about to testify in any such proceeding.

Any employer who violates any provision of this section is liable in a civil action for lost wages suffered by an employee as a result of the violation, and an employee discharged or demoted in violation of this section is entitled to be reinstated to his former position. The burden of proof is upon the employee.

Any employer shall have as an affirmative defense to this section the following: willful or habitual tardiness or absence from work; being disorderly or intoxicated while at work; destruction of any of the employer’s property; failure to meet established employer work standards; malingering; embezzlement or larceny of the employer’s property; violating specific written company policy for which the action is a stated remedy of the violation.

The failure of an employer to continue to employ, either in employment or at the employee’s previous level of employment, an employee who receives compensation for total permanent disability, is in no manner to be considered a violation of this section.

The statute of limitations for actions under this section is one (1) year.

What the Retaliatory Discharge Law Really Means

First, the law prohibits firing or otherwise punish someone who files a workers compensation claim. It also protects any other employee who is a witness and testifies in a workers comp proceeding (deposition or hearing). If proven, the guilty employer will have to pay restitution of any lost wages to the injured employee and/or be reinstated to their former position if demoted. Of course, the burden of proving these allegations is on the aggrieved employee. In defense, an employer can allege, and then must prove, other viable reasons for the employment action. If a violation of some written company policy, the action ultimately taken must be reflected in that same policy. For example, if the company policy provides for one remedy, the company cannot then cite the policy after having some other remedy such as demotion or discharge. The employer is protected from a civil lawsuit from continuing employment for someone who has been determined to be permanently and totally disabled or otherwise not able to perform the job. And, the statute of limitations, or time to bring the lawsuit, is a very quick one (1) year. By comparison, most civil actions for negligence (auto accident) is three (3) years. Even the time to file a workers compensation claim is two (2) years.

Practical Effect of Retaliatory Discharge Law

While the law provides a legal remedy, most people do not desire to get their former job back after being wrongfully fired or demoted. And many lawyers are surprised to learn there is only a one year SOL to bring their case. Nevertheless, the Workers Compensation Commission historically takes note of such bad behavior by employers, and their decisions can be influenced, especially if there are any credibility issues with company witnesses. It is sad that we have to have such a law, but it is there for those employees who have been affected by retaliatory actions by unscrupulous employers when they get injured on the job.

For more information about your rights and options, contact South Carolina workers compensation attorney Robert J. Reeves at 803-554-4157 or email .