Workers' Comp Policy Harmed Newer Hires

     ALBANY, N.Y. (CN) - A company's probation policy discriminated against new employees who were injured on the job and claimed benefits, a New York appeals court ruled.
     C&S Wholesale Grocers, of Keene, N.H., which supplies supermarket chains nationwide, "dissuaded" probationary workers from reporting injuries by firing them, an action contrary to the intent of state workers' compensation law, the Appellate Division in Albany found last week.
     The company terminated Julio Rodriguez after he reported an injury just a week shy of completing his 90-day probation in April 2011. Rodriguez worked as an order selector - an employee who readies store shipments by using a motorized jack to move large pallets of groceries around a warehouse.
     C&S, ranked as the largest wholesale grocery distributor in the country, operates nearly two dozen warehouses nationwide, including three in New York, according to the company's website. Clients include Ralphs, Pathmark, Safeway and other supermarket chains.
     Like all new C&S workers, Rodriguez signed the "Trainee Attendance/Safety Policy," which contains a provision warning that any preventable injury sustained during probation would lead to dismissal.
     Rodriguez hurt his foot while operating a pallet jack. He reported the accident to the company, sought medical treatment and missed a few days of work.
     When he got back, he was fired.
     The company determined Rodriguez suffered a preventable injury, one he caused himself by not operating the jack safely.
     Rodriguez subsequently sought workers' compensation benefits and also filed a discrimination complaint against the company with the state Workers' Compensation Board, contending that he had been fired in retaliation for his benefits claim.
     An administrative law judge for the board agreed that the C&S probation policy violated Section 120 of workers' compensation law, which bars an employer from discriminating against a worker because he claimed or attempted to claim benefits.
     The full Workers' Compensation Board affirmed the decision.
     C&S appealed, but the Appellate Division's Third Judicial Department also affirmed Wednesday.
     "There is substantial evidence to support the board's determination that claimant was terminated pursuant to such [probation] policy and, therefore, we find no basis to disturb the board's decision," Justice John Egan Jr. wrote for a four-member panel.
     New York enacted Section 120 to ensure that workers could file benefit claims without fear of being fired, according to the ruling. Courts also have found the statute applies when "the mere prospect" of filing a claim "motivates the employer to engage in a preemptive retaliatory discharge," Egan wrote.
     The justices pointed to the parallel treatment new C&S workers receive: if they are injured when violating safety protocols, they are fired automatically; if they are not injured when violating safety protocols, they are subjected to "accelerated" discipline that could include suspension, lost pay or termination.
     "Although the record reveals that the employer's 90-day policy is applied evenhandedly and - purportedly - is aimed at promoting workplace safety, the policy nonetheless has a discernible impact upon probationary employees who are injured in work-related accidents, i.e., employees who potentially could seek workers' compensation benefits," Egan wrote.
     "Such a policy dissuades those probationary employees who are injured in the course of their employment and wish to remain employed from reporting their injury and pursuing workers' compensation benefits, which, in turn, runs counter to the Legislature's intended purpose of insuring that employees can exercise their rights under the compensation statutes 'without fear that doing so may endanger the continuity of [their] employment,'" he added, citing the sponsor's memo that accompanied the bill that put Section 120 in place.
     Presiding Justice Karen Peters joined the opinion, as did Justices John Lahtinen and Leslie Stein.
     Colm Ryan of Bond, Schoeneck & King in Albany argued for C&S. Linda Clarke of the Attorney General's Office represented the Workers' Compensation Board.