Not hired b/c of non-related factor?

[OHRoadwarrior]

It is a bad decision to hire someone with an open WC claim as it could subject you to liability also if there is an overlap of injuries. I think it makes perfect sense to avoid hiring you until that point. They said they would not hire you because you have an open WC claim in process, not because you filed one.

 

[jamhunt009]

Documentation

I "do have firm evidence and documentation" that the president told me that he would not hire me b/c of my pending workers comp case against the public school. Furthermore, I have several emails from the VP expressing her happiness that I was going to begin working with their program. The emails detail my pay and possible work sites. She received my application and had me forward official transcripts to her office. Also, she scheduled me to come in and meet with her and the program coordinator so we could strategically plan my employment and best use me but 2 hours before that meeting the president informed her that she would not be allowed to use me b/c of my case pending. In fact, I called two board trustees and told them about the matter and they did not approve of this practice and said that they were not aware that it was in use by the college. However, the president told me (and I can concrete prove it) that it had been his practice for the 9 yrs he has been president there and that the board was in support of it. I have hard data to back up my comments. Thank you for your concern and I am doing better but still have a ways to go.

 

[jamhunt009]

Policy

This is the adopted and governing policy for the college.
Nondiscrimination Policy

**********College's Board of Trustees and staff recognize the importance of equal opportunity in all phases of the College's operations and has officially adopted a position of nondiscrimination on the basis of race, color, sex, age, religion, disability, national origin, or other non-relevant factors. This policy applies to both students and employees at all levels of the College's operations.

The "or other non-relevent factors" is being used against me. My pending case has nothing whatsoever to do with this college. The president even told me (I can prove it) that my litigation was not with them. However, in the same breath he told me that he would not hire me b/c of the pending case. He is in direct contradiction and conflict with the school nondiscrimination policy. I am sure that the "or other non-relevant factors" part will be removed soon. Of course, I have already made my downloads of the policy in anticipation of this removal.

 

[cbg]

Okay, let's try again.

Company policy is not law. They MUST follow the law. They are NOT required by law to follow their policy.

 

[OHRoadwarrior]

It is relevant, I already explained why.

 

[eerelations]

Based on the information you've provided about your WC claim, I see a good chance you will lose that lawsuit anyway. Combine that likely loss with the fact that it's perfectly legal for a prospective employer to retaliate against an external person (i.e., a non-employee) for being embroiled in a WC lawsuit by refusing to hire said external person means you don't have legal recourse against this prospective employer.

 

[tranquility]

Why would you say the WC claim is problematical? The OP already has two decisions in his favor, so the matter of law for the court would be to determine if he was on the job. The facts from an amazingly similar event:

The school system said his medical expenses should not be covered since he wasn’t on-the-job, but finally the state of Arkansas decided that since the principal was being compensated for travel expenses commuting to and from the school, therefore he was technically on-the-job when the shooting occurred. Additionally, the principal was talking on a school-issued cell phone about official business of the district when he was shot. It was also ruled the attack arose out of the principal’s anti-gang-related activities.

 

[eerelations]

OK well maybe it isn't now that I look at it differently. That said, though, it's still legal for the prospective employer to refuse to hire him based on this, and it's still not retaliation because he's not an employee of the prospective employer.

 

[ESteele]

Again, OP, you need to consult directly with the attorney representing you in the workers compensation litigation and/or another attorney concerning the denial of employment at the college. Your counsel can research for you whether under North Carolina law a third party employer can retaliate against an applicant by denying him employment because he filed a good faith workers compensation claim involving a prior employer.

A quick, casual and non-dispositive review of some case authorities suggests that courts in other jurisdictions appear split on this issue. Some courts have concluded the third-party employer flatly violate an important state public policy by refusing to hire an applicant because he has filed a workers compensation claim. Other courts have concluded the third-party company has the right not to hire an applicant who has filed an earlier claim because the prospective employer legitimately determined the hiring of the applicant constituted an economic risk in the form of higher workers compensation insurance premiums. Notably, I did not notice any “on point” decisions from North Carolina.

In sum, it is definitely worth it to you to have your counsel thoroughly explore the prospect of a third-party retaliation claim. While it does not appear to be a “slam dunk,” you may have a basis for a cognizable claim.

 

[tranquility]

It is always a good idea to consult local council. However, one problem with the theory of how other courts have decided is that we have a legislature who tried to specifically address the problem. They did not provide relief to the OP.

The OP will have to break new ground on the law in the state on an issue the legislature is well aware of. I find it very unlikely there will be a successful result there, especially when there seems a rational basis for treating him in this manner.

 

[ESteele]

Tranquility, I am not familiar with the legislative action you referenced. I am interested. Can you share this information with everyone or PM it to me? Did this particular legislation pass before or after the courts in North Carolina determined in the early to mid 1990s that it was is an actionable breach of public policy to retaliate against a worker who exercises his or her right to petition for worker’s compensation insurance benefits?

 

[tranquility]

The Retaliatory Employment Discrimination Act.

http://www.nclabor.com/edb/Employment_Discrimination_Bureau_Laws_and_Regulations_Pa.pdf

 

[jamhunt009]

Arkansas WC ruling

How can I find the Arkansas case details. I am very interested in it as it is very similar as mentioned to my current WC case.

 

[tranquility]

Search for the portion I quoted. You'll get an article. The rest is up to you.

 

[jamhunt009]

What if

What if I could provide proof that the former employer told the potential employer not to hire me b/c I was an SOB for suing the school system? I would then have a case of retaliation based on my filing for WC. Correct?