USL&H Section 49 - Retaliation

Feature Article

SECTION 49 OF THE LONGSHORE ACT
RETALIATION FOR FILING A WORKERS’ COMPENSATION CLAIM

"No provision under the Longshore Act can be more annoying to an employer than section 49. The employer fires a worker, and the employee turns around and claims his termination was because he had suffered a work-related injury and claimed benefits."

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SECTION 49 OF THE LONGSHORE ACT
RETALIATION FOR FILING A WORKERS’ COMPENSATION CLAIM

Often times the injury occurred years before the firing, and no formal claim was filed; the employer voluntarily paid benefits. Yet, the worker alleges he was fired not because he stole, lied and cheated as the employer contends, but because of the long forgotten injury. To the workers' compensation lawyer, who is not also a labor lawyer, section 49 of the Longshore Act can be frightening since it is not a disability related provision, but rather is an antidiscrimination/antiretaliation law. Just like Title VII of the Civil Rights Act prohibits discrimination based on race, sex and national origin, section 49 prohibits employers from discriminating against workers because they filed a workers' compensation claim, or testified in a workers' compensation proceeding. 33 U.S.C. § 948a.

I have had the privilege of representing the employer in three key cases which greatly limit the adverse impact of section 49 on employers. The first case I will always remember by Jerry Kramer's description of Vince Lombardi, the famed coach of the Green Bay

Packers football team -- "he does not discriminate against anyone; he treats us all like dogs." In Holliman v. Newport News Shipbuilding, 852 F.2d 759 (4th Cir. 1988), the employer had a rule that if a worker was absent for 5 days, and he did not call in to his supervisor and inform the employer why he was absent, he was automatically fired. An injured worker failed to call in, and after 5 days, he was fired. The employer did not contest the fact that the worker was absent due to a compensable injury. Indeed, the employer was voluntarily paying the claimant compensation at the time he was fired. The employer's argument was simple -- all workers who are absent must call in, including those on workers' compensation.

The Administrative Law Judge was outraged by the employer requirement that a worker must call in, when the employer knows why he is absent -- due to a compensable injury. The Judge held the Employer violated section 49 of the Act, reasoning that but for his injury, the Claimant would not have had to call in, and hence he would not have been fired. As an added measure, the Judge also awarded temporary total disability, noting that the employer failed to show suitable alternative employment, since it took away the light duty job the worker might have otherwise returned to. We decided not to appeal the total disability award, but rather we focused our energies on the section 49 violation. We had placed in the record evidence that absolutely all workers who are absent for more than 5 days, and who do not call in, are fired. The rule was rigidly applied, and there were no exceptions; period. Of critical import, we proved that workers with personal injuries or illnesses, who do not call in, are likewise fired.

The Benefits Review Board reversed the Judge, and the Court of Appeals for the Fourth Circuit upheld the reversal. The Board and the Fourth Circuit held that Administrative Law Judges cannot interfere with employer work rules. Provided injured workers are not signed out for adverse treatment, section 49 can not be triggered by a work rule applied to all employees. That is, an employer can treat "us all like dogs." The key, in my view, is how the employer treats a worker with a personal injury or illness. If the employee with a compensative injury is treated no worse than an employee with a personal injury or illness, then there can be no discrimination. Of course, the work rule must not only apply to both sets of workers, but it must be evenly enforced. To avoid arguments of subjective differences in enforcement, a rigid rule is preferable to one which allows "judgment calls."

Five years later, in Brooks v. Newport News Shipbuilding, 2 F.3d 64 (4th Cir. 1993), I faced the issue left unanswered in Holliman -- could the fired worker recover temporary total disability. The Claimant had a work-related injury, and the employer had placed him in a light duty job consistent with his work restrictions. The employer, however, in investigating the work injury, obtained medical records which showed the employee had falsified his pre-employment medical questionnaire -- failing to reveal a prior back problem. The employer had a rule that anyone who falsifies a company record will be fired. The employer fires all such liars, and thus there was no issue of a section 49 violation. The same Administrative Law Judge who had the Holliman case, however, had this case, and he was not going to give up the cause. The Judge held that by firing the Claimant, the Employer took away its evidence of suitable alternative employment, and thus the Judge awarded the Claimant temporary total disability.

We appealed, and again the Benefits Review Board and Fourth Circuit reversed the Judge. The Fourth Circuit argument was interesting since the Director argued in favor of the Claimant. The Fourth Circuit was outraged that the government would support liars. To make its point, the Court asked the Solicitor whether an employer had to pay compensation to a worker with a rib injury, who was placed on light duty, if the employer noticed a knife wound scar during its medical examination for the injury, which lead to the employer discovering that the worker was an axe murder, and the employer then fired the worker. The Solicitor's attorney had no hesitation in answering in the affirmative, compensation was due the axe murderer. The Fourth Circuit was so shocked by the answer, it then asked the Solicitor's attorney whether the Director knew that this argument was being made on her behalf. The Solicitor's attorney, not understanding the unusual question, answered yes, "he represented the Director." The Court pressed on, noting the question was not who counsel represented, but whether the Director personally knew what the Solicitor was arguing for in Court. Being honest, if nothing else, the Solicitor's attorney responded that the Department of Labor is very big, his brief went through several layers of review, and thus he did not know if the Director was actually aware the argument was being made on her behalf.

The Fourth Circuit never mentioned the Director's position in its decision. The Court merely held that when a worker loses his job, even a light duty job, because he violates a company rule, he is not due any compensation. The wage loss, due to the firing, is caused not by the compensable injury, but rather the employee's misconduct. Of course, if there was a wage loss in the light duty job, the worker would still be entitled to compensation for that loss. That is, you treat the worker, for compensation purposes, as if he remained in the light duty job.

The last leg of the section 49 triangle was built in Hunt v. Newport News Shipbuilding, 29 BRBS 105 (CRT) (4th Cir. 1995). Incredibly, we again faced the same Administrative Law Judge (now since retired). Again, he would not give up the ship without a fight. The Claimant was fired when the employer's in-house counsel, in investigating the cause of the injury, subpoenaed medical records which determined the Claimant had lied on the employer's pre-employment medical questionnaire. Reasoning that but for the work injury, the records would never have been subpoenaed, the Judge found a section 49 violation. The Judge reasoned that only injured workers were subject to the Court's subpoena power, and that was enough to justify a section 49 violation.

Under the heading of "been there, done that," the Benefits Review Board and Fourth Circuit again reversed the Judge. The Board and Fourth Circuit emphasized (again) that the employer's action against the claimant was based on the fact the claimant violated a company rule, and was not motivated by the fact the claimant had a work injury. The record evidence was clear the employer fired many employees for falsifying company records, and the vast majority had nothing to do with work injuries. Indeed, some of the firings occurred when falsified pre-employment medical questionnaires were discovered due to the investigation of personal injuries and illnesses (the employer administered its own self-insured health benefits and disability plan). The Court emphasized that the coincidence that it was the investigation of a work injury, and even the use of a subpoena, which led to the firing, was irrelevant.

Section 49 is designed and intended to prevent discrimination and retaliation based on the pursuant of compensation benefits. Section 49 was not enacted to, and does not protect, liars and cheats.

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