Minnesota OSHA and workers compensation

Employers are responsible for providing a safe and healthful workplace for their employees. OSHA’s role is to assure the safety and health of workers in Minnesota workers by setting and enforcing standards. If an employee or worker takes it upon himself or herself to report an employer violation that employee or worker cannot be retaliated against.

The following are excerpts taken from the OSHA fact sheet for a whistleblower’s rights:

• You may file a complaint with OSHA if your employer retaliates against you by taking unfavorable personnel action because you engaged in protected activity relating to workplace safety and health, commercial motor carrier safety, pipeline safety, air carrier safety, nuclear safety, the environment, asbestos in schools, corporate fraud, SEC rules or regulations, railroad carrier safety or security, or public transportation agency safety or security
• Your employer may be found to have retaliated against you if your protected activity was a contributing or motivating factor in its decision to take unfavorable personnel action against you. Such actions may include:

1. Firing or laying off
2. Blacklisting
3. Demoting
4. Denying overtime or promotion
5. Disciplining
6. Denying benefits
7. Failing to hire or rehire
8. Intimidation
9. Reassignment affecting promotion prospects
10. Reducing pay or hours

• If you believe that your employer retaliated against you because you exercised your legal rights as an employee, contact your local OSHA office as soon as possible, because you must file your complaint within the legal time limits. OSHA conducts an in-depth interview with each complainant to determine whether to conduct an investigation. For more information, call your closest OSHA Regional Office. A complaint can be filed online.  Contact Minnesota OSHA Compliance (OSHA.Compliance@state.mn.us), Phone: 1-877-470-OSHA (1-877-470-6742).

If you have a work related injury due to an OSHA violation, Minnesota law prohibits your employer from discharging or discriminating against you because of a work related injury, illness or disease. If the injured worker can establish that the employer fires or forces to resign an injured worker in retaliation for filing a Workers’ Compensation claim, the worker is allowed under Minnesota work comp to file a civil lawsuit against the employer.

For assistance with your work related retaliation claim, please feel free to contact me.

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For those who are familiar with workers’ compensation understands one of the basic principles driving worker’s compensation is low costs.  Workers’ Compensation was established to provide benefits to injured employee’s in a quick and efficient manner while providing employers’ and insurers with limited liability and known exposure.  As such, an employer is not typically responsible for damages.

We would like to believe that an employer would not punish an employee who requests workers’ compensation benefits. However, in some cases, an employer will try to “wash their hands” of the employee and may even retaliate against the employee for filing a workers’ compensation claim.  Examples of retaliation can include refuse to rehire, increase or decrease in job duties, erroneous disciplinary action, poor review, etc.

Under the Minnesota workers’ compensation law, an employer is not liable directly to the employee for third party damages where they are paying workers’ compensation benefits as the workers’ compensation law is the employee’s exclusive remedy against their employer. However, in some circumstances an employer can be liable for damages. These damages would be in addition to the benefits an injured employee would receive for workers’ compensation benefits.

Retaliatory discharge/Obstruction of Benefits.

If an employer discharges or threatens to discharge an employee for seeking worker’s compensation benefits or intentionally obstructs an employee from seeking workers’ compensation an employer may be liable in a civil action.

Damages may include:

1. Any loss of workers’ compensation benefits caused by the violation
2. Costs and attorney fees
3. Punitive damages not to exceed three times the amount of any compensation benefits the injured worker is entitled.

In order to establish a case of Workers Compensation Retaliation, the injured employee must demonstrate that:

1.  The employee sought or received Workers’ compensation benefits;
2. The employee was terminated from his position or not offered continuing employment; and
3. The employee’s Workers Compensation status was a motivating factor in his employer’s decision to terminate him or not re-hire him.

If the employee establishes a case, the employer must then articulate a legitimate reason for the discharge. The burden then shifts back to the employee to show, by a preponderance of the evidence, that the employers articulated reason was “pretextual” and that the discharge was for impermissible reasons.

To maintain a civil action for obstruction of benefits, the employee must establish by clear and convincing evidence deliberate, outrageous, and extreme conduct that obstructs or hinders the receipt of benefits due to the employee. The conduct must rise to a level that is egregiously cruel or venal.

Refusal to offer continued employment.

If an employer, without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee’s limitations, the employer may be responsible for damages. In determining the availability of employment, the continuance in business of the employer shall be considered and written rules promulgated by the employer with respect to seniority or the provisions or any collective bargaining agreement shall govern. It does not apply to employers with 15 or fewer full-time employees

Damages may include

1. Wages from the date of refusal to offer continued employment up to $15,000

An employee should consult with an attorney if it is believed they have been obstructed from obtaining benefits, terminated because of their injury, or refused continued employment.

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