An Employer Cannot Retaliate Against an Employee for Filing a Lawsuit for a Workplace Injury

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An employee who filed a workers’ compensation claim for a workplace injury while she was a temporary worker may file a negligence lawsuit against the company even though the company became her employer after she received workers compensation benefits for the injury from the temp agency’s insurer, and the law prevents the employer company from taking retaliatory action against her for doing so. This principle was recently clarified by the Massachusetts Appeals Court, in Bermudez v. Dielectrics.

The law provides that – in most cases – an employee who is injured on the job cannot file suit against the worksite employer for their injuries; instead, their recourse is limited to filing a workers’ compensation claim with the employer’s insurer. However, the plaintiff in this particular suit, Ms. Bermudez, was employed by a temporary employment agency and, through that agency, worked at the defendant company, Dielectrics. The temp agency was technically her employer, however, and when Ms. Bermudez was injured on the job the temp agency’s workers compensation policy covered her injury. After Ms. Bermudez recovered from her injury, Dielectrics hired her as a full-time employee. A few years later, she filed a lawsuit against Dielectrics and the Dielectrics employee whose allegedly negligent actions had caused her injury. Upon learning of the lawsuit, Dielectrics terminated Ms. Bermudez’s employment, stating that her lawsuit demonstrated that she did not have the company’s “best interests in mind.”

Ms. Bermudez brought suit against Dielectrics, claiming that its firing of her was unlawful retaliation for her exercise of her protected right, i.e., the worker’s compensation claim she made to the temp agency’s insurer. After a lower court ruled that, since Ms. Bermudez was not a Dielectrics employee when she was injured, she could not sue the company for retaliation, Ms. Bermudez appealed that ruling. The Appeals Court disagreed with the lower court, stating that because the law gave Ms. Bermudez the right to sue a third-party person responsible for her injury and Dielectrics was not her employer at the time of the injury and was, thus, such a third-party, Dielectrics’s actions in firing her for doing so constituted unlawful retaliation in violation of Massachusetts law.

The court reasoned that a 1971 amendment to the workers’ compensation law that abolished the requirement that the injured employee choose between filing suit against their employer and obtaining workers compensation benefits “afforded” the employee the right to file suit against a third party for the injuries suffered even after receiving the benefits; thus, it held, the statute that prevents an employer from retaliating against an employee who exercised a right “afforded” by the workers compensation statute likewise prohibits employers from retaliating against employees who filed such third-party suits. The Appeals Court noted that this holding was consistent with the Legislature’s intention that the injured party be fully compensated for [their] injuries.”

The facts of this case are atypical and are not likely to arise with any regularity. However, the decision underscores Massachusetts courts’ commitment to protect employees who exercise rights provided to them by the law from retaliation. Employers are cautioned to consult with legal counsel before undertaking any adverse action against an employee due to the employee’s exercise of a legal right.


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