Can I Be Fired If I Hire an Attorney and Make a Workers’ Compensation Claim?

For most employees, time off work due to a work-related injury can be very stressful. Even more stressful is the thought of losing your job because of your injury or because you filed a workers’ compensation claim based on your injury. For this reason, when considering whether to file a workers’ compensation claim, one of the first things many employees want to know is whether they can be fired in retaliation for their claim.

It Is Unlawful For An Employer to Discharge or Discriminate

N.J. Stat. Ann. § 34:15-39.1 makes it unlawful for an employer to discharge or in any manner discriminate against an employee who has filed a workers’ compensation claim. The injured employee should be aware, therefore, that it is just as much a violation of the statute for an employer to demote an employee, as it is to fire him or her.

Timing of Firing is Important, But Not Always Determinative

The timing of the firing (or demotion) is important. It is not the only determining factor, however. Where an employee can show that he or she filed a claim (or advised the employer that a claim was soon to be filed), and that soon thereafter the employer terminated the employee, that employee has made a prima facie case of wrongful termination.

Employers in Cape May Court House

No one can perfectly predict what your employer will chose to do if you file a workers’ compensation claim. If your employer is upset by your conduct or wants to retaliate against you, it is possible that they will choose to fire you. Neither lawyers nor the New Jersey Workers’ Compensation System can guarantee that this will not happen.

Because of the way that the workers’ compensation process works, your employer will get notice when you have filed a workers’ compensation claim because they will be asked to give a position on the claim – whether they intend to contest it or not.  Moreover, if you have an attorney who has assisted you in your paperwork for your claim, your employer will likely be aware that you have hired an attorney.

Although all employees run this risk, there are many reasons for an employer not to fire you if you hire an attorney and file your worker’s compensation claim.  First, by virtue of hiring an attorney, you show your employer that you take your claim seriously and will fight to defend it. It also shows that you are likely well aware of your rights under New Jersey’s workers’ compensation laws. This means that an employer is less likely to take advantage of you.

Second, under New Jersey law, firing you on the basis of your filing of a workers’ compensation claim can constitute retaliation, which is prohibited in New Jersey. Employers open themselves up to additional litigation and potential additional damages when they take such action.

Workers’ Compensation Retaliation in New Jersey

Under New Jersey law, an employee who is discharged after making a claim for workers’ compensation can show that he or she was retaliated against if they can prove (1) that he or she made or attempted to make a workers’ compensation claim, and (2) that he or she was discharged in retaliation for making that claim.

The first element of this test is fairly easy to prove. The second may seem obvious, but can often be more complicated than it first appears. Your employer is unlikely to concede that you were fired as an act of retaliation. Instead, the employer will likely have an alternative basis for your firing – such as poor performance at work. This means that employees must be prepared to dispute alternative justifications for firing and show why retaliation was the primary reason that you were let go.

If you are successful on your workers’ compensation retaliation claim, you are entitled to additional compensatory and punitive damages. Depending on the severity of the retaliation, these damages can quickly add up. The possibility of such monetary punishment acts as an important deterrent to keep employers from engaging in illegal, inappropriate behavior, and is a significant reason why employers typically will not punish an employee for a workers’ compensation claim.

Should You Hire a New Jersey Workers’ Compensation Attorney?

Deciding whether to hire an attorney and file a workers’ compensation claim is a very personal decision that requires evaluating a variety of factors. If you have suffered a significant injury at work that has led to steep medical bills and lost wages, you should not let your fear of future action deter you from asserting your rights under the law.

A New Jersey workers’ compensation attorney can help you in the workers’ compensation process and work with you to maximize your recovery. In the event that your employer responds negatively to the filing of a workers’ compensation claim, your attorney can also help you to combat the possibility of retaliation or to take swift action in the event retaliation does occur.  At the end of the day, your attorney is your ally in the workers’ compensation process.

At Petro Cohen, P.C., our workers’ compensation attorneys understand the risks and rewards of filing a workers’ compensation claim and can work with you to come up with a plan of action that meets your needs. Our experienced attorneys will take the time to listen to the details of your case, and work with you every step of the way to ensure you are treated fairly and receive the benefits you rightfully deserve.

Petro Cohen, P.C. has been consistently recognized as one of New Jersey’s leading firms in the area of workers’ comp. The firm received the highest rating by Martindale-Hubbell – the world’s foremost authority on law firm credentials – in Professional Excellence and Ethical Standards and Legal Ability.

The workers’ compensation department head, Frank Petro, is respected locally, regionally, and nationally as a leading attorney in this specialized field. He has been recognized as an outstanding attorney by Best Lawyers® every year since 1995 and by Super Lawyers® every year since 2005. Moreover, he has achieved a rating of “Superb” on the leading lawyer-review website, Avvo®, the highest achievable rating.

Along with Suzanne Holz Meola, Terri Hiles, and Daniel Rosenthal, our New Jersey workers’ comp attorneys have more than 100 years of combined experience, having successfully handled thousands of litigated workers’ comp cases throughout New Jersey. This experience and winning track record means that you are going to have a skilled New Jersey work injury lawyer who will work for you.

For your convenience, we have four office locations in southern New Jersey, including Cape May Court House, Northfield, Cherry Hill, and Hamilton.  Our offices are open daily from 8:30 AM until 5:30 PM, and our attorneys can be reached 24/7 via online chat available on the firm’s Web site:

If you’re considering filing a claim or have filed a claim and are facing retaliation, contact us online or at (888) 675-7607.

Why Work With PC?

  • Highest firm rating (AV) from Martindale-Hubbell
  • Recognized by "Best Lawyers in America®" every year since 1995
  • Named in every "NJ Super Lawyers®" survey for Workers' Compensation since 2005 and 12 times for Personal Injury