A common question we are asked by individuals that have just been fired for exercising work comp rights is what can we do for them. Specifically, what can the victim of retaliatory discharge get after being fired? You likely are aware of that monetary damages are available to a plaintiff that succeeds in bringing a retaliatory discharge claim. But exactly how much is available and what each type of damages redressed is likely unknown.
The bread and butter of any wrongful discharge claim, including retaliatory discharge, are lost wages. These damages are the income the employee would have earned had he or she not been fired. Lost wages generally end in one of two ways. First, the worker may achieve redress, meaning they either win at trial or reach a settlement with the former employer. Lost wages will end at this point because the case is over. Second, and much more common, the employee gets a new job making as much or more than he or she was with the defendant.
One important factor in calculating lost ways is new employment, no matter how much the plaintiff’s new income is compared to the salary with the defendant. The plaintiff is required to attempt to find a new job after getting fired, a concept called “mitigating damages.” Whatever income a plaintiff is able to find is subtracted from the lost wages he or she has accumulated.
For example, say a plaintiff was making $400 per week working for the defendant. After plaintiff is fired, she is out of work for 5 weeks and then gets a job where she earns $300 per week. Plaintiff works at that job for 10 weeks and then gets promoted, where she starts making $400 per week. Plaintiff gets another promotion 4 weeks later and starts making $500 per week.
[$400 x 5 weeks = $2000] + [$400 x 10 weeks - $300 x 10 weeks = $1000] = [Lost wages of $3000]
So, plaintiff lost her full salary for 5 weeks, and she is entitled to recover that full amount. Plaintiff then found a new job, but she was earning $100 less each week. She is also entitled to recover the difference each week. However, once plaintiff starts making $400 per week—her former salary—her lost wages stop accumulating. Defendant doesn’t get a “credit” once plaintiff starts making more money. However, if plaintiff were to get laid off or demoted, she cannot start accumulating lost wages again. Once she hits or exceeds her former salary, lost wages end.
One related but distinct type of monetary redress is “front pay.” Front pay is actually an equitable remedy, not a type of damages. This basically means that a judge, rather than a jury, can determine front pay (though the judge may let the jury decide the issue). Front pay can be equated to lost wages that are likely to occur after the trial is over. Imagine that our hypothetical plaintiff above never got promoted and continued to make $300 per week. All income that would have been earned by trial are accounted for in her lost wages damages. However, plaintiff will continue to earn $100 less each week, even after the trial is finished. Front pay compensates an employee for this continued loss in income. The judge can determine how many weeks or years to award front pay, though it is highly unusual to see awards beyond 5-7 years.
Along with economic damages, non-economic damages make up the rest of a plaintiff’s compensatory damages. As the name suggests, compensatory damages compensate the fired employee for his or her losses. Non-economic damages seek to redress losses the plaintiff has suffered that are not easily converted to a dollar amount. The most common example is emotional distress. Getting fired is extremely stressful and can have a huge toll on the fired employee’s life. Emotional distress redresses the employee’s stress, worry, and humiliation that is brought on by being fired and discriminated against.
These types of damages are notoriously difficult to predict. Because we don’t normally think about distress in terms of dollars and cents, a jury is given wide latitude is deciding what a plaintiff’s distress is worth. Additionally, retaliatory discharge claims require a jury to make a difficult, if not impossible task: only emotional distress brought on by the firing is recoverable for a retaliatory discharge claim. Any emotional distress brought on by being injured at work must be redressed in the underlying workers’ compensation claim.
Punitive damages serve a completely different purpose than compensatory damages. Where compensatory damages focus on the plaintiff and compensating him or her for the losses suffered, punitive damages focus on the defendant. Specifically, punitive damages are meant to punish an employer for doing something wrong. This punishing nature means that not every case is appropriate for punitive damages. Instead, punitive damages are reserved for cases where an employer acted with an evil motive or reckless disregard of the fired employee’s rights. Though not every case is appropriate for punitive damages, most retaliatory discharge cases will at least allow the jury to decide if punitive damages should be assessed.
The punishing nature of punitive damages means that they are treated differently than compensatory damages in several regards. The first and most striking example is who receives punitive damages. The plaintiff is only awarded half of the punitive damages, with the other half being awarded to the state of Missouri. Next, punitive damages are generally not covered by insurance agreements. This means that collecting punitive damages may be extremely difficult, because, unlike compensatory damages, employment insurance will not pay punitive damages. Finally, punitive damages, unlike other portions of judgments, cannot be discharged by declaring bankruptcy.
It is worth noting that some damages one may expect are not available in a retaliatory discharge claim. First, any medical bills or medical treatment related to the plaintiff’s underlying work-related injury are off the table. These items fall under the exclusivity of work comp and must be collected in that proceeding, held before the Division of Workers’ Compensation. Second, unlike virtually every other employment-based lawsuit, there is no option for attorney’s fees under the retaliatory discharge statute. This means that the plaintiff, even if she wins at trial, must pay for her own attorney. In contrast, a disability discrimination claim allows for a prevailing plaintiff to collect attorney’s fees as part of the damage award. For whatever reason, the General Assembly has not allowed for fees in retaliatory discharge claims.
Damages are the redress available to an employee that has been wrongfully discharged. Understanding what damages are available and how they are calculated is essential in deciding whether to pursue a claim and whether to accept a settlement or proceed to trial. Only an attorney that has experience with the complexity and intricacies of a retaliatory discharge claim under Chapter 287 can confidently advise you on these key decisions. If you have been fired after getting hurt at work or for filing a work comp claim, call us to find out more.
The law is complex, so the only way to know the answers about your case is talk with one of our attorneys one-on-one! These consultations are confidential, require no commitment, and free!
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