Litigation

RETALIATORY FAILURE TO REHIRE???

By Mark P. Loftus, Esq.

Fighting yet another Motion for Summary Judgment in a retaliatory discharge case. My client, a nice young guy had worked for years with his employer. He suffers a legitimate back injury lifting a heavy hose[he was in a heavy labor job]. He is off work for a bit, and is eventually released, with some signficant lifting restrictions. Employer says he can basically work in a light duty job for a certain period, but if he doesn't find another position within the company[consistent with his restrictions] within a finite period, he will be terminated. Additionally, the company is supposed to help him find another spot, but does absolutely nothing for him. Several HR people testify they typically help injured employees find other spots, but for some reason, just never got around to my client. Gosh, I wonder why? Of course he doesn't land a job consistent with his restrictions, so they can him.

I file suit for him and after lots of depos, they move for summary judgment, arguing he was physically unable to do his former job. Which is true.

But, under Section 4(h) of the Illinois Workers Compensation Act, it is unlawful for the employer to " ...refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of hir or her rights or remedies granted to him or her by the this Act."

In my client's case, there is testimony from HR personnel that they usually helped people with restrictions find suitable spots in the company consistent with those restrictions. BUT...they didn't make any such effort with my client. The failure to do so raises a legitimate fact question as to why the HR people didn't help my client. The implicit explanation being that they didn't help him because he had a comp claim pending. That will be my argument anyway. Hope the judge gets it.

Full post as published by Illinois Lawyer Blog on March 18, 2011 (boomark / email).