Cautionary Tale: Retaliatory Discharge Statute May Not Protect Employee if Original Comp Claim Was Filed in Another State

A recent federal district court decision from Oregon, Kwiecinski v. Medi-Tech International Corp., 2016 U.S. Dist. LEXIS 72453 (D. Or., June 3, 2016), provides an important practice point not only for attorneys in the Beaver State, but for practitioners across the nation: A state’s retaliatory discharge statute might not apply where the employee’s workers’ compensation claim was filed in another state. That is to say that where an Oregon resident sustained an injury in New York, while training for his New York employer, and where he was discharged shortly after filing a claim for benefits under the New York system, he could not maintain a retaliatory discharge action against that employer under Oregon’s law.

Background

A New York employer hired Plaintiff as a regional sales representative for the employer’s Northwest territory. Shortly thereafter, Plaintiff traveled to the New York City metropolitan area for training. While there, he sustained injuries in an automobile accident. He was a passenger in a vehicle driven by a co-employee.

Plaintiff indicated that after he returned to Oregon, he discussed the situation with the employer’s corporate president and indicated that he might be filing a workers’ compensation claim. He indicated further that the president made it clear that if he did so, there would be no place for him with the employer. Plaintiff filed his claim in New York and was fired about a month later. Plaintiff subsequently also filed a claim in Oregon. Plaintiff also filed a retaliatory discharge action in federal court.

Former Employer’s Contentions

The former employer moved for summary judgment, contending that at the time of Plaintiff’s termination, Plaintiff had only applied for or invoked the benefits of the New York workers’ compensation system and that the Oregon retaliatory discharge statute—Or. Rev. Stat. § 659A.040—only protected employees who applied for or invoked the benefits of Oregon’s workers’ compensation system.

District Court Agreed With Former Employer

Plaintiff countered that § 659A.040 was intended to protect Oregon workers who invoke or apply for the benefits from the workers’ compensation system of any state. The court disagreed. The court examined the language of the statute, which provides in relevant part:

It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 [emphasis mine].

Citing two Oregon state court decisions, Jenkins v. Vestas-American Wind Tech., Inc., No. 3:12-cv–01758-AA, 2014 U.S. Dist. LEXIS 47677, 2014 WL 136497149 (D. Or. Apr. 4, 2014) and Anderson v. Hibu, Inc., 26 F. Supp. 3d 1019, 1025 (D. Or. 2014), the district court judge held the clear language of the state required the employee to invoke the benefits of the Oregon Act prior to being discharged [emphasis mine]. That had not been done here; summary judgment in favor of the former employer was appropriate.

Take-Away

Don’t assume that because a state prohibits retaliation against an employee who has filed a claim that the statute applies to out-of-state claims.