Safety and OSHA News

Did employee’s firing violate state workers’ comp law?

Can you legally fire a new employee during his probation period for a workplace injury that could have been prevented?

That’s the question in the case of employee Julio Rodriguez and employer C&S Wholesale Grocers.

Rodriguez was an order selector for C&S in New York state. He had to move large pallets of goods using a motorized pallet jack. He was trained to use the jack according to C&S’s safety guidelines.

When he started his job with C&S, Rodriguez signed the company’s safety policy which said if he was injured in a preventable incident within the first 90-day probationary period, he would “automatically forfeit his right to work” for the employer.

About one week before his probationary period was to end, Rodriguez injured his left foot while operating a pallet jack. He sought medical treatment and missed work for a few days. After he returned to work, he was fired because his injury was caused by his unsafe operation of the pallet jack in violation of C&S’s safety rule.

Rodriguez filed a workers’ comp claim and a discrimination complaint contending he had been fired in retaliation for seeking workers’ comp benefits. (Even though he hadn’t filed for comp yet when he was fired, New York’s law applies to situations in which “the mere prospect” of filing a claim after an injury is included.)

A workers’ compensation law judge (WCLJ) decided the C&S policy discriminated against employees in violation of the New York Workers’ Compensation Law. The decision was upheld by the Workers’ Compensation Board.

C&S appealed to a state court.

What if you break rule and you’re not injured?

The appeals court noted that C&S’s director of training said that if a new employee broke a safety rule but didn’t get injured, the infraction would be noted in the employee’s file, and other penalties might be imposed, including suspension and lost pay, but not firing.

The policy effectively categorized new employees into two groups, according to the court: those who violate safety rules but are not injured, and those who violate safety rules and are injured. Only injured employees are automatically fired.

The court said that encourages employees who are injured not to report their injuries and not to file for workers’ comp benefits. That runs counter to a purpose of New York’s workers’ comp law: that employees can report injuries and apply for comp without fear that doing so may endanger their employment.

For that reason the appeals court let the original decision stand: The C&S policy discriminated against employees in violation of New York’s Workers’ Compensation Law.

What do you think about the court’s ruling? Let us know in the comments below.

(Rodriguez v. C&S Wholesale Grocers, NY Supreme Crt., Appellate Div., No. 516124, 7/3/13)

For more information on workers’ compensation, see Safety News Alert’s Recommended Safety Links page.

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