Before I get into the fun stuff, let me first share with you my inspiration for writing this post.
Last month, my company had the chance to participate in a Staffing Industry Convention as an exhibitor. Just a word of advice; if you are an exhibitor at an industry convention, ATTEND THE WORKSHOPS! 2 reasons for this: 1. your target audience is trapped in a box with you. Prime networking opportunity! 2. The people at these workshops are literally throwing their problems out to everybody in the room hoping for somebody that has an answer. Great Conversation starter!
Anyway, I attended one of the workshops. One thing that came up several times is trouble with Post-Termination Workers’ Comp Claims. The Staffing Industry tend to has an issue with the concept of termination due to the nature of the business. Naturally, when an assignment ends, the employment status of those temp workers falls into the gray area.
The short version of the law states that, once an employee is officially terminated or laid-off (emphasis on the word officially), the burden of proof that the injury occurred prior to termination falls on the (former) employee.
That being said, California has a track record of siding with employees when it comes to these types of situations. The best thing you can do is CYA (Cover your Assets) before you even get dragged into a mess like this.
Here are a few tips that can help you out:
- Document, Document, Document!!!
Setup a system in which you can keep records of and easily track any and all employee injuries. When you pull out your injury log in the courtroom and it shows that you documented 100% of your injuries except for the one in question, it will only help your argument.
On top of this, there is always the argument that “I was fired because I tried to file a claim”. It is also important to document employee performance so there is no question as to why the employee was terminated in the first place.
- If you’re going to terminate an employee, then do it!
If you are going to fire an employee, do it! Don’t leave any room for uncertainty or he said, she said! Do not temporarily suspend an employee or put them on a leave of absence. This leaves room for what would-be a Post-term claim, in which the employee has the burden of proof, to become a true claim, in which the employer must prove fraud (if in fact that is the case). Uncertainty is a killer in this type of situation.
- Make sure employees know how/where to report an injury
By law, employers are obligated to post information about Workers’ Comp. Employees should know what to do in the event of an injury, how to report the injury and who the Workers’ Comp carrier is, in case they need to report the incident directly. In the case of Post-term claims, these requirements become your friend. What this does for you is eliminate the “I didn’t report my claim while I was employed because I didn’t know how/where to report my injury” argument. The best thing to do is post it for everyone to see and even have the employee acknowledge this in writing.
- Consult with a lawyer
These are just helpful tips for you to consider and I am not a lawyer. Each situation, especially in the Staffing Industry, is unique. To say that there is a “cover-all” answer to situations like this is foolish. The absolute best thing you can do to prepare for any situation that could result in a court case, is to speak with a person that makes their living in a court room.