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Retaliation for workers' comp claims made in probationary period

An interesting wrongful termination ruling came recently from the State of New York’s Appellate Division, involving one of the nation’s largest wholesale grocery distributers, C&S Wholesale Grocers. While the specifics of New York law differ from that of Minnesota, the principles of the decision would apply here and in most U.S. jurisdictions.

According to the case, new hires at C&S were put on a 90-day probationary period during which they could be let go without an internal human resources review if they weren’t working out on the job. The problem with that policy was this: workers could be fired in retaliation for filing workers’ compensation claims during that probationary period.

Workers’ comp retaliation isn’t new, but it is illegal. In fact, most employment law statutes specifically prohibit employers from retaliating when workers exercise their legal rights.

In this case, a man was hired in one of C&S’s New York warehouses as an order selector. That means he used a forklift or motorized pallet jack to pick up and move pallets of products from their warehouse locations to the shipping docks. Just a week short of his 90-day probationary period, he injured his foot while using the pallet jack, missed a few days of work, and filed a workers’ compensation claim.

Unfortunately, when the man was hired, he like all employees had to sign a document called the “Trainee Attendance/Safety Policy,” which said he would be terminated if he sustained any preventable injury during the probation.

When he tried to come back to work, he found he had been fired because the company felt his injury had been preventable. In fact, they said he was at fault because he hadn’t been operating the pallet jack safely. Those facts, however, would not affect his eligibility for workers’ compensation.

The man sued through the state’s workers’ comp system, claiming that he had been fired in retaliation for filing the workers’ compensation claim, and he won. The workers’ comp appeals agency affirmed, and C&S appealed that decision to the state’s appeals court, which also affirmed the decision.

"Such a policy dissuades those probationary employees who are injured in the course of their employment and wish to remain employed from reporting their injury and pursuing workers' compensation benefits,” wrote the court, even though it found that C&S had applied the policy consistently and even-handedly.

C&S has more than 20 warehouse locations in the northeast, the mid-Atlantic, the southeast, and on the west coast, although none in Minnesota. If it means to comply with the law in the majority of those locations, it will need to refrain from workers’ comp retaliation or it could face more litigation.

Source: Courthouse News Service, “Workers' Comp Policy Harmed Newer Hires,” Marlene Kennedy, July 9, 2013

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