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Keep the snark to yourself! If you suspect malingering, let system play out

by on
in Employment Law,Human Resources

Sometimes, employees fake or exaggerate injuries in the hopes of getting paid time off. If you suspect that’s going on, don’t get angry and put vindictive roadblocks in the employee’s way.

Instead, treat him the same way you treat everyone else. Process his paperwork, send him off for medical exams and let your insurance carrier determine whether the claim is genuine. This straightforward approach can save you from a jury’s wrath.

Recent case: Ray, a satellite dish installer, earned routine praise for his work ethic and productivity. He was among the highest paid employees in his group.

Even so, when his employer announced a dollar-per-hour raise for those who passed a test, Ray jumped at the chance. However, it turned out he wasn’t eligible for the raise because he already made more than his co-workers. Ray complained.

Shortly after, he claimed he hurt his back on the job. His supervisor sent him to the company’s ­workers’ compensation doctor, who diagnosed lumbar strain and said he could return to work with slight ­lifting restrictions.

When Ray returned, he claimed he began hearing snide comments from managers questioning how he hurt himself. He said he heard he was costing the company money and disrupting the workflow because the restrictions kept him in the office instead of in the field installing dishes.

When the workers’ compensation carrier requested additional information from the company, someone mentioned they suspected Ray had been angry about the missed pay raise and might have exaggerated his injury. Finally, Ray’s supervisor told him if he didn’t get back to his old job, he’d be terminated.

Ray became upset and begged to keep his job, asking his supervisor to call HR. An HR rep offered Ray FMLA leave, which he took. Then, three weeks after it expired, he was terminated.

Ray sued, alleging retaliation for filing a workers’ comp claim.

A jury heard the case and awarded him $750,000 in exemplary or punitive damages, plus another $136,000 in lost wages. The company appealed. It argued that it had a uniform policy that required termination after three days of no-call/no-show.

The appeals court didn’t buy that reason. It noted that Ray wasn’t fired after three days, so clearly the policy wasn’t uniformly applied. Plus, there was no reason to overturn the jury’s conclusions, which were based on the totality of the testimony that arguably showed Ray was treated shabbily. It did, however, eliminate the punitive damages. (Echostar v. Aquilar, No. 08-10-00328, Court of Appeals of Texas, 8th District, 2012)

Final note: Unkind and untrue comments can be the difference ­be­­tween a case being tossed outearly or going to a sympathetic jury. When that happens, you will have to spend more time and money on an appeal to reverse the jury’s decision.

Remember, juries are usually made up of people who are or once were employees. They come with their own preconceived notions of employers, especially large corporations. This seldom works to your advantage, especially when the worker who is suing seems vulnerable and genuinely injured.

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