Ark. Code Ann. § 11-9-107 (2020)
Penalties for discrimination for filing claim
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- Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of the individual's claim for benefits under this chapter, or who in any manner obstructs or impedes the filing of claims for benefits under this chapter, shall be subject to a fine of up to ten thousand dollars ($10,000) as determined by the Workers' Compensation Commission.
- This fine shall be payable to the Second Injury Trust Fund and paid by the employer and not by the carrier.
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- In addition, the prevailing party shall be entitled to recover costs and a reasonable attorney's fee payable from the fine.
- Provided, however, if the employee is the nonprevailing party, the attorney's fee and costs shall, at the election of the employer, be paid by the employee or deducted from future workers' compensation benefits.
- The employer may also be guilty of a Class D felony.
- This section shall not be construed as establishing an exception to the employment at will doctrine.
- A purpose of this section is to preserve the exclusive remedy doctrine and specifically annul any case law inconsistent herewith, including, but not necessarily limited to: Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991); Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991); and Thomas v. Valmac Industries, Inc., 306 Ark. 228, 812 S.W.2d 673 (1991).
History. Init. Meas. 1948, No. 4, § 35, Acts 1949, p. 1420; Init. Meas. 1968, No. 1, § 6; A.S.A. 1947, § 81-1335; Acts 1993, No. 796, § 6.
A.C.R.C. Notes. Acts 2001, No. 1757, § 9, provided in part:
“Nothing in the act, which originated as House Bill 2646 of 2001, nor in Act 1552 of 1999 shall impliedly repeal any part of Act 796 of 1993. Act 796 of 1993 is expressly reaffirmed by this act, which originated as House Bill 2646 of 2001.”
Research References
Ark. L. Notes.
Flaccus, Employment Law: Eliminating Some Employee Rights, 1997 Ark. L. Notes 1.
Ark. L. Rev.
Note, Wal-Mart Stores, Inc. v. Baysinger: Retaliatory Discharge in Arkansas Workers' Compensation Cases, 45 Ark. L. Rev. 939.
Recent Developments in Tort Law (Davis v. Dillmeier Enterprises, Inc.), 51 Ark. L. Rev. 223.
U. Ark. Little Rock L.J.
Sullivan, The Arkansas Remedy For Employer Retaliation Against Workers' Compensation Claimants, 16 U. Ark. Little Rock L.J. 373.
Case Notes
Purpose.
This section was intended by the legislature to be a remedy for willful discrimination by the employer done in retaliation for the employee's having sought compensation under this chapter, not as a remedy for discrimination by the employer on the basis of the employee's disability as a result of the injury. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).
Applicability.
The provisions of the 1993 amendment apply only to injuries which occur after July 1, 1993; the legislature did not intend subsection (e) to be applied retroactively. Stanton v. Larry Fowler Trucking, Inc., 52 F.3d 723 (8th Cir. 1995).
For purposes of this section, the date of the injury was the date the worker was discharged from employment. Rohrer v. Hart's Mfg. Co., 53 Ark. App. 4, 917 S.W.2d 180 (1996).
There is no public policy in this state that requires an employer to keep an employee whom the employer recognizes has become physically unsuited for the job. Brown v. Pepsico, Inc., 844 F. Supp. 517 (W.D. Ark. 1994).
This section's annulment of a cause of action in tort for retaliatory discharge is applicable to cases in which the date of discharge is after July 1, 1993. Malone v. Trans-States Lines, 325 Ark. 383, 926 S.W.2d 659 (1996).
Common-law Remedies for Retaliation.
By enacting § 16-118-107, the Arkansas General Assembly did not intend to revive the individual cause of action for common-law remedies for retaliation under Arkansas workers' compensation law which it expressly annulled at this section. Lambert v. LQ Mgmt., L.L.C., 2013 Ark. 114, 426 S.W.3d 437 (2013).
Effect of Amendments.
The legislative enactment of the 1993 amendments was a direct annulment of the former law supporting a private cause of action for retaliatory discharge in connection with worker's compensation claims. Brown v. Pepsico, Inc., 844 F. Supp. 517 (W.D. Ark. 1994).
This section was amended specifically to annul the holding in Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991); however, the amendments are only applicable to injuries occurring after July 1, 1993. Pedigo v. P.A.M. Transp., Inc., 891 F. Supp. 482 (W.D. Ark. 1994).
Wrongful discharge claim is not governed by any law other than that in effect at the time it occurred; it was the intent of the General Assembly to abolish the cause of action for wrongful discharge as of July 1, 1993. Tackett v. Crain Automotive, 321 Ark. 36, 899 S.W.2d 839 (1995).
This section was amended in 1993 in order to preserve the exclusive remedy of the Workers' Compensation Act by eliminating the common-law remedies for retaliatory or wrongful discharge. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).
Joint Petitions.
Former employer's claim was not barred by the language of the joint petition filed in the workers' compensation proceeding, wherein she agreed that if her petition for workers' compensation benefits was approved she would have no further claim under the Arkansas Workers' Compensation Act of any nature, since her suit in circuit court was not a claim under the Arkansas Workers' Compensation Act but a cause of action for retaliatory discharge. Rohrer v. Hart's Mfg. Co., 53 Ark. App. 4, 917 S.W.2d 180 (1996).
Post-Injury Discharge.
Where an employee has alleged two separate injuries, one being a work-related physical injury, for which she has received workers' compensation benefits, and one being a subsequent nonphysical injury arising from employer's action in terminating her based upon her physical disability as a result of the injury, the first injury is exclusively cognizable under the Workers' Compensation Act (see § 11-9-105), while the subsequent injury is of the type envisioned by the Arkansas Civil rights Act, § 16-123-101 et seq.Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).
There is no remedy under this chapter for an employee who is terminated from his or her job on the basis of a disability after the end of the rehabilitation and compensation period; thus, the exclusive-remedy provision of this chapter does not preclude an employee from bringing an action under the Arkansas Civil Rights Act, § 16-123-101 et seq., based upon employer's alleged discrimination in terminating her on the basis of her permanent restrictions and impairments. Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 956 S.W.2d 155 (1997).
Retaliatory Discharge.
Claims of retaliatory discharge which are filed after July 1, 1993, the effective date of Acts 1993, No. 796, are claims made to the Arkansas Worker's Compensation Commission rather than to the courts; this remedy should not be construed as creating an exception to the employment-at-will doctrine. Brown v. Pepsico, Inc., 844 F. Supp. 517 (W.D. Ark. 1994).
Substantial evidence supported the finding that the employer did not willfully terminate the claimant where the claimant testified that the owner of the employer told him that he he was no longer needed and that he had been replaced, but (1) the owner stated that he told the claimant to come in the next morning to discuss his work schedule, (2) the bookkeeper in charge of payroll testified that she did not have any documentation that the claimant had been fired and that his case file simply reflected that he had been injured, paid workers' compensation benefits, and had not returned to work when he was released by his doctor, and (3) the claimant' supervisor testified that she had the authority to hire and fire personnel, and that, to her knowledge, the claimant had not been fired. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000).
Cited: Shippers Transp. v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979); Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104, 704 S.W.2d 635 (1986); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991); Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005).