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Termination, Layoff or Suspension: Does it Matter?


Being told you can't work anymore is never good news, regardless of how the end of your employment is characterized. However, in employment law, what seems a subtle distinction can be crucial in determining whether you have been treated unfairly. This issue was discussed in a recent workers' compensation retaliation case against an employer that routinely uses seasonal employees or lay off workers who are subject to recall.

Shelton v. OSF Saint Francis Medical Center: A case of retaliatory discharge

There was an unfortunate case in Illinois recently, where a registered nurse was injured while at work in the rehabilitation unit of her employer's medical center. As a result of her injured knee, she was placed on a permanent 20 pound lifting restriction. Because of this limitation, she could no longer work in her RN position.

The company's HR representative told the nurse she was going to be terminated within 30 days if she could not find a position within the medical facility. Eventually, the nurse was sent a letter terminating her employment. Although the company later tried to rescind the termination, the nurse had moved by then and taken another position with another employer.

Be careful how you characterize your claim.

When the nurse filed her lawsuit under the Illinois Workers' Compensation Act, she characterized her claims as "retaliatory discharge'" but then amended her complaint to claim instead retaliatory failure to recall to work. The problem was, she had already admitted in her complaint that she had actually been terminated. Her case was dismissed, but why?

Generally speaking, when an employee is fired, she can only sue for retaliatory discharge. She cannot, however, sue for failure to rehire or failure to recall. Those types of claims only apply to seasonal employees or employees who are on leave or laid-off.

What went wrong?

In Shelton's case, the court explained that once an employee is terminated, that employee falls into a distinct category of former employees, who have no standing to compel their former employer to recall or rehire them. This fact creates an important distinction between an employee who was terminated in retaliation for an injury-related claim, and one who was laid off or temporarily let go. In order to bring or maintain a cause of action that the laid-off or seasonally hired employee would have been recalled or rehired, there must have been some possibility that the employee would be allowed to return to work.

In essence, Shelton's admission during litigation that she was terminated from her position effectively negated her amended complaint alleging that the hospital failed to recall her in retaliation for filing a workers' compensation claim. The lesson to be learned here is to be very careful how you characterize your claims. Otherwise, you run the risk of pleading yourself right out of court. Here, the nurse's failure to recognize that she could not assert a retaliatory failure to rehire/recall claim since she had admitted she was terminated, barred her lawsuit.

If you or someone you know has been terminated or laid-off after filing a workers' compensation claim, or if you have any other employment related concerns, contact Michel | King Michel & Kingeither online or by calling us at (205) 265-1880.

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