Injured Employees Right to File L&I Claim Without Employee Interference- Retaliation and Recourse

The rights of workers to make an L&I claim are a product of what was called a “grand bargain” where the legislature attempted to balance the interests of businesses in the State against those of injured workers.  at Title 51 RCW was enacted in order to  give employers immunity from employee suits and, in return, employees a right to make a claim for medical bills and lost wages in the event of a qualifying injury without regard to fault. Courts in Washington have recognized that the statutory scheme authorizing the L&I system“is based on a compromise between workers and employers, under which workers become entitled to speedy and sure relief, while employers are immunized from common law responsibility.” Nelson v. Dep’t. of Labor & Indus., 198 Wash. App. 101, 110 (Div. 2 2017)

Over the many years since the legislation creating the workers  compensation system Labor and Industries, the administrative body that processes and vets work place injury claims, has developed a system where the interests of the employee and those of the employer are represented at various stages of the process. The employer’s role in a workers compensation claim is limited, although its interests conflict with their employees and and employer sometimes oversteps their bounds. The system is designed so that the interests employer may be represented in the claims process, but the law draws a bright line between appropriate employer participation and retaliation.

There is a strong public policy against employer conduct that is or is seen as retaliatory against employees who simply exercise their legal rights.  The risk of employers attempting to discourage or punish L&I claims  was recognized by  the legislature when it enacted RCW 51.48.025 entitled Retaliation by employer prohibited—Investigation—Remedies, which set up an administrative guardrail against this type of conduct:

(1) No employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title. However, nothing in this section prevents an employer from taking any action against a worker for other reasons including, but not limited to, the worker's failure to observe health or safety standards adopted by the employer, or the frequency or nature of the worker's job-related accidents.

(2) Any employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the director alleging discrimination within ninety days of the date of the alleged violation. Upon receipt of such complaint, the director shall cause an investigation to be made as the director deems appropriate. Within ninety days of the receipt of a complaint filed under this section, the director shall notify the complainant of his or her determination. If upon such investigation, it is determined that this section has been violated, the director shall bring an action in the superior court of the county in which the violation is alleged to have occurred.

(3) If the director determines that this section has not been violated, the employee may institute the action on his or her own behalf.

(4) In any action brought under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section and to order all appropriate relief including rehiring or reinstatement of the employee with back pay.

RCW 51.48.025.

Although referenced at subparagraph (3) employees subject to retaliatory conduct are not provided a specific private cause of action. The statute simply suggests that the “employee may institute an action and at subparagraph (4) re-establishes superior court jurisdiction and creates an exception to employer  immunity.  Unlike similar legislation which has a private right of action spelled out, the nature of the  elements and remedies available are spelled out in the statute. Recongzing this apparent omission the Washington Supreme Court n Wilmot v. Kaiser, 118 Wn.2d 46, P.2d 18, held that one existed by looking at common law claims for employment practices against public policy. The Court held that retaliatory discharge for exercising or seeking to exercise industrial insurance rights violated both common law and statutory public policy, and an employer cannot claim immunity as a defense. In explaining its reasoning the Court emphasized that the legislation expressly restores jurisdiction to the superior courts for the purpose of actions based on conduct prohibited by RCW 51.48.025.  Even in the absence of an express grant of a right of action, the Court found legislative intent to create one which it recognized.

Employer retaliation against employees filing L&I claims is commonplace and injured workers need not wholly rely on L&I to guard against employer retaliation. An employee who experiences adverse consequences after making or exploring an L&I claim would be well served by speaking to an attorney practicing in this area to explore their possible recourse.  The adverse event can entail termination, demotion, loss of benefits or other negative consequences.  While the initial burden is on the employee, under the relevant case law the timing of the employer action as it relates to the claim, may go a long way towards meeting that burden.