What Do You Think?
Employers who fire or take other negative action against an employee who files a worker’s compensation claim may face retaliation lawsuits. But what if the injured employee hasn’t taken steps to file his claim yet? Does terminating him risk litigation? A case involving a window film worker addresses how that scenario would play out in Texas courts.
The employee suffered a spinal fracture while working for a company that manufactured window tints. He asked his employer to provide him job accommodations because of the injury. Shortly afterward, he said, the company retaliated against him and ultimately forced him to leave.
He sued for retaliation under Texas Labor Code § 21.055. Under that provision, an employer “may not discharge or in any other manner discriminate against an employee because the employee has … instituted or caused to be instituted in good faith” a workers’ compensation claim.
The employer asked the court to throw out the case. Given that the employee never “instituted” a worker’s compensation claim, it said, he didn’t have a plausible retaliation claim.
Could the employee sue for worker’s compensation retaliation?
A. No. He didn’t file a claim for worker’s compensation benefits.
B. Yes. He told his employer he was injured.
If you selected B, you agreed with the court in Thompson v. Hitek Films, LLC, No. H-25-5596 (S.D. Tex. 07/02/26), which allowed the employee to move forward with his case.
The court explained that Texas courts interpret “instituted” broadly to encompass a situation where the employee informs his employer of his on-the-job injury. The court noted that the employee alleged that the fact that he was injured and shortly thereafter was fired in anticipation of his claim was one piece of evidence that he reported the injury.
The court agreed, finding that the employee “instituted or caused to be instituted a proceeding when he reported his on-the-job injury.” Because the employee had a plausible worker’s compensation retaliation claim, the court refused to dismiss the case
