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Unreasonable Refusal to Rehire

An employee who is terminated without reasonable cause after he or she sustains a compensable work injury may have an unreasonable refusal to rehire claim against his or her employer.

Once an employee shows that he or she sustained a work injury and was not rehired, the burden shifts to the employer to show reasonable cause for not rehiring the injured employee. To establish reasonable cause, the employer must show some other reason, not associated with the work injury that justifies its decision not to rehire.

An employer who is found to have unreasonably refused to rehire an injured employee must pay a penalty amount consisting of one year of wages. Generally however the Department will not order the employer to pay a lump sum, but instead takes a week-by-week look at the wages lost from the employer and wages the injured employee received elsewhere. The employee will receive the accrued portion of the penalty from the employer as a lump sum payment with the remaining unaccrued portions payable anytime the employee earns less than the admitted average weekly wage used to calculate the penalty amount.