In our previous post we explained how employees can get help if they are fired for filing a workers’ compensation claim. We recommend employees file a complaint with Washington Labor and industries. Employees can not always use that method. For example, employees must file a complaint within 90 days of the discrimination. An employee may not be able to file a complaint in that short time period. However, there are other options available to Washington employees. In this post we will discuss a second option.
Washington Tort of Wrongful Discharge in Violation of Public Policy
Washington employees facing discrimination or retaliation for filing a workers’ compensation claim might be able to file a wrongful termination claim. If the employee cannot make a timely complaint to the Director of Labor & Industries or is unhappy with the investigation’s result, then the Tort of Wrongful Discharge in Violation of Public Policy (TWDVPP) may be helpful. The time limit to file such a claim in court is three years. We always advise employees to act fast and contact a lawyer right away. Employees should not wait for three years because it takes time investigate, prepare, and file these claims.
First, this option is only available if the employee’s employment was terminated or if the employee was forced to quit. If the employee was simply demoted, or disciplined, then this claim is unavailable
Second, the Washington Tort of Wrongful Discharge in Violation of Public Policy only applies in certain special situations. Washington is an at-will employment state. That means an employer can fire an employee for any reason or even no reason.
But, there are important exceptions to the “at-will” employment rule. For example, an employer cannot fire someone for an illegal reason. Example of Illegal reasons in Washington include firing someone because of the color of their skin (race discrimination), for being pregnant (pregnancy and sex discrimination), for being a different religion (religious discrimination), for being gay (sexual orientation discrimination), etc. An employer also can’t fire someone for making a complaint under the discrimination laws (retaliation).
Our Washington Supreme Court also decided that employers should be held responsible for terminating someone (or forcing someone to quit) because that person took some action to protect an important public policy or exercising a recognized legal right or privilege. For example, an employee that files a Workers Compensation claim is exercising a legal right. In summary, if an employee is discharged or forced to quit after he or she filed a worker’s compensation claim, then a claim under the wrongful discharge tort might be available,
This is the first of a three part series. We examine what an employee can do when he or she is discriminated against for making a claim under Washington’s Workers’ Compensation laws (also known as Industrial Insurance Act). An employee has many protections under Washington’s employment laws available. However, fighting back can be hard, so we recommend you speak to an experienced employment lawyer. Each case is unique so please feel free to contact us to set up a time to talk.
Washington Employment Laws Protect You Against Retaliation
Here are just a few examples of the type of issues that employees might see when they are facing retaliation for filing a workers’ compensation claim.
- Worker makes a claim. Worker is given light duty. Worker is ready to return to full duty. Worker is terminated for tardiness or no-show no-calls that occurred over a year ago.
- Worker is hurt. Worker makes claim. Worker is placed in a room all day with no work. Must just sit in the room. Worker either quits or is fired shortly thereafter.
- Worker is hurt. Employer becomes aware that the worker is hurt. Employer fires worker for a violation of workplace rule that is not enforced anywhere else.
In all these scenarios we see two common issues:
- the employer thinks an employee will file a claim or the employee has already filed a claim and the employer knows it, and
- the employer takes some unfavorable action against the employee, for example, firing the employee, laying off the employee, or demoting, failing to promote, unwarranted poor evaluation, change to job duties, harassment, change in working hours, or a change in pay.
Once these two elements exist, the employee should next determine what they can do.
What Should an Employee Do?
Washington’s Workers’ Compensation laws prohibits discrimination based on an employee asserting his or her rights under the Industrial Insurance Act. However, an employee must act fast and contact a lawyer immediately. The law only allows 90-day timeline to file a complaint. After a complaint is filed, an investigation is initiated. An employee will get a determination to the investigation within 90 days of the complaint being filed. Sometimes it might take a little longer, so be patient, but follow up.
If you think you have been discriminated against or retaliated against then act fast and file a complaint. You can find a copy of the complaint form here: Workers Compensation Discrimination Form.
The biggest challenge to this process is the short 90 day period to file a complaint. Often times, employees come to the lawyer long after the 90 days have passed. Remember an employee also has other options which we will discuss in future posts.
If you have been fired recently (within the last three years), and you think you can prove the motivation was, at least in part, your race, then you may have legal recourse under the Washington Law Against Discrimination. But what do we mean by race? And how do you prove that your termination was motivated by your race, since most employers do not advertise racist views?
What is Race?
Interestingly, race is not actually grounded in biology: not one characteristic, trait or even gene distinguishes all the members of one so-called race from all the members of another so-called race. Race is therefore a social concept. It is also a fairly modern social concept.
Ideas about race are acted upon. Our nation has engaged in policies that promote some “races” over others: for example, slavery and the genocide of Native Americans are obvious examples.
We know that some people treat people differently because of a perception that they are a member of a racial group, such as American Indian, Asian, Latino, White or Black. There are also perceived distinctions within these generally understood racial groups, for example, based on nationality. Judgments about such people, based on their so-called race, are acted upon, including within the employment context.
How do I prove race motivated the decision to fire me?
Under the Washington Law Against Discrimination, an employee must prove that race was a “substantial factor” in the decision for fire him or her. A “substantial factor” means a significant motivating factor in bringing about the employer’s decision. “Substantial factor” does not mean the only factor or the main factor in the challenged act or decision.
There are two types of evidence that can be shown to prove this. The first is direct evidence, such as evidence of your manager using a racial slur against you when you were being fired. The second is circumstantial evidence, such as evidence that a particular manager fired you and 3 other employees of the same race while retaining poorly performing employees of another race.
In most situations, perhaps the most important piece of evidence relates to your performance as an employee. If you have been performing well, as demonstrated through objective, measurable, and reliable standards when compared to other similarly-situated employees of a different race, then you have the foundation for a successful claim. That is because most employers generally rely on an employee’s performance to justify terminating him or her.
However, employers are justified in terminating employees for workplace policy violations. For example, if you have missed scheduled work for several days without any justifiable excuse, then your employer is likely justified in terminating your employment even if you were the best performing employee.
As mentioned in prior blog entries, most employment is “at will” in Washington State. That means most employers are free to terminate an employee for any reason or no reason, so long as the termination is not motivated by an unlawful reason, such as being based on racial animosity.
It is therefore critical for you to provide evidence that the termination was based on your race.
What evidence do I need?
In addition to evidence that you have not violated workplace policies and have been a good performer, evidence that the decision used to justify firing you is false, is extremely helpful. For example, if your employer claims you were fired because you were late, but you can prove that you were not, and the employer knew this, then it is clear that you were fired for some other reason, perhaps because of your race.
Likewise, even if you were late, but others or a different race who have also been late but have not been fired, provides circumstantial evidence of racial animus.
On the other hand, if the decision-maker who hired you is also the same perform who fired you, then you will have a very difficult time proving your case when that person knew of your race at the time of hire.
Finally, you may believe you were fired because of your race, but find it difficult to prove this. However, based on knowing that you were treated differently during your employment, even based on just small things, like not being invited out socially when others were, or how people interrupted you, or generally treated you with less respect, you might be able to show that you were indeed treated differently even if the decision-maker did not consciously know it him or herself. This type of unconscious racism is called Implicit bias, and it is very real and destructive. If an employer fires you based on your race, even if he or she isn’t consciously aware of this, this is still unlawful.
What remedies can I get if I can prove I was fired because of my race?
Successful employees who can prove that race was a substantial factor in the decision to fire them are entitled to their wage loss, emotional distress, and having the employer pay their attorneys’ fees and litigation costs (federal laws also may allow for the recovery of “punitive” damages, which are meant to punish the employer). Your wage loss is measured by how much you would have earned if you would have remained employed, versus how much you have been able to earn since your termination. Emotional distress damages reflect the emotional pain and suffering that arose because of the termination and its aftermath. The employer will also be required to pay your attorney’s fees and the costs of the lawsuit if you win.
How should I proceed now?
If, after reading this short article, you think you may have been fired because of your race, you should speak with an experienced employment attorney right away. Please feel free to contact our office for a free consultation.
You should know your rights when your employer does not provide you with proper rest breaks. We have put together a simple primer on Washington’s rest break laws. Note that this is general information about Washington’s rest break laws; each case has unique facts which may make a difference when applying the law. Laws also change over time, so make sure to review or check with a lawyer to make sure you have the most up to date information.
Length and Frequency of a Rest Break
Washington employment laws require Employers to provide employees with a 10 minute paid rest break every four hours. The rest break must happen no later than the 3rd hour of work.
Scheduling Rest Breaks
Employers do not need to schedule rest breaks for employees. But employers do need to affirmatively promote meaningful break time. Employers need to make sure employees are taking rest breaks. Taking 10 one-minute breaks is probably not meaningful break time. Its not enough for an employer to tell an employee to take a break if they are able to. Often, employees are overworked or the workplace is understaffed and therefore employees cannot take breaks. The employer is in control of the workplace and must make sure that its employees are taking rest breaks as required by law.
Are Rest Breaks Voluntary?
Rest breaks are mandatory. Employees cannot waive their right to take rest breaks. Employers shouldn’t pressure employees into missing rest breaks.
What is a Rest Break?
A rest break is a time for personal rest and relaxation. The employer must completely relieve the employee is of all work duties. An employer can require you to stay on the premises, but the employee must be free from all work duties.
Should I get Paid for Rest Breaks?
Yes! An employer must pay for a 10-minute rest break for every four hours of work. If you work on piece rate basis, then you must be paid separately for rest breaks. For example, if you are paid per mile or paid for a unit of production (think as if being paid for a basket of berries picked, or per square foot of install).
Why do some employers choose to “nickel and dime” their employees? Its not uncommon. The simple fact is that for most employers, their single greatest expense is their labor – meaning the employee. Unscrupulous employers have a strong incentive to cut labor costs, even by violating wage laws. They hope that they don’t get caught violating Washington employment laws, and even if they do, they might have to only pay one or two employees their back pay instead of all the back pay owed to their entire labor force. This is where class actions can help the employee in taking on the powerful employer.
Class actions have been the best tool for many workers to recover their unpaid wages. By their very existence, these lawsuits help keep certain employers honest. But now Congress wants to pass a bill that would radically diminish the effectiveness of class actions nationwide.
As a back pay lawyer working to recover unpaid wages for Washington workers, I have seen many schemes by employers to steal wages from their employees. Recently, we settled four class action lawsuits where Class members recovered significant wages. These class actions allowed the workers to work together to get their unpaid wages instead of bringing numerous expensive and time-consuming individual suits.
Indeed, if the unscrupulous employer is smart, they will only try to steal a modest amount of wages at a time. This creates a problem for workers trying to get their illegally withheld back pay under Washington employment laws. For a employment lawyer, initiating a lawsuit for a single worker who is “only” owed $1000 to $2000 is inefficient. It is hard to fight against employers that often have more money to pay for lawyers than the employee. Instead, by using class actions as a vehicle to represent all affected workers and by filing one lawsuit to benefit an entire group of workers is a better use of the Court’s time, the lawyers time and helps make the cost of fighting a lawsuit affordable. It just makes more sense to bring one lawsuit to fix the employers unlawful pay policies than hundreds of individual lawsuits.
Some critics of class actions point to the contrast in fees that back pay lawyers earn in comparison to the relatively small amounts recovered by the individual workers. But back pay lawyers, including us, generally earn a smaller percentage of our fees on class actions than we do on other cases. Plus, class actions are very time consuming and risky. Moreover, judges review each back pay lawyer’s fee application and only approve their fees after careful scrutiny. Class members and the employers are also free to object to the back pay lawyer’s request for fees. We have never had our request for fees challenged. In fact, our clients have always been thrilled with the results.
But Congress is working to pass HR-985 that will make employers far less accountable for their wage theft. The bill aims to eliminate most class actions by creating unnecessary hurdles that protect employers, but does nothing to protect the workers. For example, in an unpaid wage case, it means that all the class members have to have the same amount of unpaid wages. We know that most employees do not get paid the same rate or work the same hours. They are not likely to have the exact same damages as all other employees. It also adds an automatic appeal in the middle of every case, which causes needless delay and expense, often in excess of a year. These draconian measures go on and on.
For more information on this bill, simply google “H.R. 985” or the Orwellian named “Fairness in Class Action Litigation Act.”