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Often, people come to me because they believe that the employer has fired them and they want to know what to do. The scenario usually is the following: the worker has some type of a dispute with the employer. Often it is something minor. Words are sometimes exchanged. The supervisor may say something like, "Get out of here," "Go home," "You're done," etc. This leads the worker to believe the employer has fired him when that was not the employer's intention. After the worker stops coming to work, he or she then learns they hadn't been fired and should have been reporting for work all along. Usually by that time it is too late because the employer has terminated the worker for not showing up, and has hired a replacement.

This scenario seems to happen too often, and is usually caused by a lack of communication, high emotions, or a combination of both. Luckily, there are techniques to avoid this problem, and, perhaps, keep your job at least for the short term.

First, a worker should never leave work unless a supervisor specifically tells him to leave or gives him permission to leave. All employers expect a worker to be at work on time and to be present for the work day. If you have a question about your employment status (especially after an argument or confrontation) ask your supervisor immediately. If you can't go to your supervisor, then go to his supervisor. Whatever you do, don't leave without first being sure you are supposed to leave.

Second, if you are told to leave do not assume that you are fired. In most cases, you may only be on suspension, and can return to work once the suspension is over. Or, a supervisor above your boss may have overridden the termination or suspension, and you can return to work immediately.

If you think you are fired, the best thing to do is write a letter to your boss, copying the human resources department, summarizing your understanding of the situation, and asking for a written status of your employment with the company. Make sure the letter is mailed certified with return receipt requested. The letter should be neutral and have a professional tone. This is not the time to argue your case or to make accusations, even if you are right.

Third, if you are suspended or terminated, then you should immediately find out if there is a grievance procedure to challenge the suspension or termination. If it exists, then you should file a challenge. At best, it will get you your job back. At worst, it will satisfy one of the requirements for filing an EEOC complaint and/or suing your employer. You should do this even though you have sent a letter to your boss.

If the grievance process fails, you should call an attorney at once. In many cases, you might want to call immediately after the start of the problem. Remember. in the heat of the moment people often say things they don't mean. Most of the time when tempers have cooled reasonable people can resolve their differences.

The New Mexico Workers' Compensation Act encourages employers to offer modified duty to injured workers and rewards employers who do so. Specifically, if an employer offers light or modified duty that complies with an injured worker's physical restrictions, the worker must accept the offer and attempt to do the work.

At that point, if the worker is earning his or her pre-injury wage, the employer/insurer doesn't have to pay any temporary total disability benefits (TTD benefits which equal 2/3 of the worker's average weekly wage). If the worker earns less than the pre-injury wage, then the worker is entitled to his current salary plus a TTD benefit that is 2/3 the difference between the pre-injury wage and the current wage. If the worker unreasonably refuses the offer of work, then the employer/insurer can terminate the worker's TTD benefits indefinitely and also limit future permanent partial disability benefits (PPD) to the impairment rating for the injury. As you can see the return to work offer is a critical step in the workers' compensation process.

I agree with the writers of the Act, and think it is critical that an injured worker return to reasonable work as soon as possible. All the studies show that the sooner an injured worker returns to work the more likely the worker will remain employed, and the sooner the worker will recover. This, in turn, minimizes the financial disruptions to the injured worker and his or her family.

Most of the time the return to work process works very well. However, sometimes there are problems such as work that violates the physical restrictions or confusion by either party as to the schedule for a worker to return to work.

To avoid these and other problems try to do the following:
A. Obtain a copy of your physical restrictions from your doctor and go over them with the doctor to ensure you understand the limitations. If you disagree with them or don't understand them, question the doctor respectfully. If you and your doctor cannot work out the disagreement regarding the restrictions contact a lawyer immediately. Do not anger the doctor, it will only hurt your case.

B. Make at least three copies of the restrictions. Give a copy to your supervisor and your attorney. Keep a copy with you at all times. Put the original copy in a safe place.

C. Try to go over the restrictions with your supervisor or your human resources department. Make sure you understand the requirements of your new job and get a written description if possible. If you believe the job violates your restrictions, respectfully discuss this with your supervisor and/or the hman resources department. Try to iron out the problems before you return to work, if possible. If you can't, then try to finish out your shift, and get an appointment with your doctor as soon as possible to go over the possible violations. If your doctor agrees that the job violates your restrictions, then try to get a note from your doctor confirming his opinion. If you have an attorney, call that person immediately. At that point, you or your attorney, if you have one, should try to work out a compromise, if possible. If that is impossible, then litigation may be the only alternative.

Hopefully, you will be able to avoid litigation. If you can't and feel you have to quit or feel you are going to be fired, you should try to retain an attorney as soon as possible. Sometimes when an attorney becomes involved, the employer becomes more cooperative. In either case, try not to quit unless you truly feel you are in danger of worsening your current injury or endangering other workers. If you do quit, make sure you explain your reasons for quitting. If at all possible, wait for the employer to fire you. If there is litigation, it's easier for the worker if the employer has to justify a firing.

In the next month or so you will probably hear a lot of propaganda regarding "tort reform." You will hear that trial lawyers (I am one) and runaway juries are ruining our economy and destroying our health care system with allegedly outrageous money awards against companies and doctors. The solution, tort "reform," usually involves capping jury awards, keeping plaintiffs (people like you) out of court and appointing "conservative" judges who will hopefully dismiss plaintiffs' cases as soon as possible.

Whatever you hear, please don't buy it. This is a false issue pushed by the Republicans to help their constituents: large corporations, HMO's, and the rich, in general.

Many of you may not know it, but we've had tort "reform" for many years in New Mexico relating to medical malpractice cases. If a person is hurt by the negligent actions of a nurse, doctor, hospital, etc., the law limits the pain and suffering damages that a jury can award.

This is precisely what the proponents of tort "reform" want to do on a national basis. However, in New Mexico, despite tort "reform," our medical costs continue to rise, medical malpractice insurance for doctors continues to rise and doctors continue to leave the state. Obviously, tort "reform" has not worked in New Mexico as it was supposed to. It will not work on a national basis.

The legal system is not out of control. The problems are doctors who refuse to police their own, corporations who sell unsafe defective products to protect their bottom line, and insurance companies who will insure anyone in pursuit of profits and then cry foul when they are forced to pay out claims on insureds they had no business insuring in the first place.

More importantly, if you allow tort "reform" to go forward it will catastrophically limit your rights to a jury trial, the only tool that regular people have to challenge the powerful. Juries are composed of people like you and me: intelligent, caring and, most important, independent. They are the only ones likely to stand up to the rich and powerful because they have no stake in the outcome.

If you think about it, our legal system composed of trial lawyers, juries and judges has been responsible for many of the good things that we have as Americans. A partial list included the following:

Equal rights for all.
Desegregation.
Safety standards for products that millions of us buy and use. Do you think Detroit would have installed head rests, airbags and seatbelts in all of its vehicles voluntarily?
Powerful penalties against tobacco companies who knowingly sickened and killed millions of us.
Fair damage awards for those injured by the negligence of others.

Our court system is the third arm of government that protects us against the legislative and executive branches when they overstep their bounds. If you gut it, like tort "reform" proponents want, then you are at their mercy.

Corporations and big business have no conscience. Juries are their consciences. They also spend lots of money to lobby and influence politicians. Their objective is simple: to remove obstacles to their businesses so they can make as much money as quickly as possible, even if it means some people will get hurt.

It is only the threat of a possible lawsuit that keeps them in line. Why do you think they are pushing so hard for these "reforms?" It's because the legal system is the only thing preventing them from achieving their goals and preventing them from being responsible to consumers like you.

Yes, there are cases where juries have awarded very large amounts of money to an injured person. However, those cases are few and far between and get most of the airplay. The major news shows don't ever comment on all the cases that are dismissed; it's not "good" news. Many of you have been plaintiffs and know how hard it is to get a fair settlement, let alone a jury verdict in your favor. And that's because the legal system has its own built in limits that, in my opinion, favor defendants, something you won't ever hear the tort reform proponents acknowledge.

So, the next time you hear a candidate for office, any office, talk about tort "reform" think carefully and critically about what they say. If you favor limiting your right to a jury, then go right ahead and vote for that person. Yet if you do don't expect much relief if you ever get hurt because of a doctor's or a corporation¹s negligence. However, if you want to preserve the right to a jury, the only thing protecting yourself from the rich and the powerful, then please speak out with your vote and your voice.