Earlier this fall Governor Phil Murphy signed Bill A-2617/S-2998 into law. This short, one page bill is an amendment to existing workers compensation law.
It says, essentially, that employers with 50 or more employees must give “hiring preference” to employees when:
- Those employees have reached maximum medical improvement.
- They are unable to work but unable to return to their old positions, even on light duty.
- The employer has an unfilled position or existing position with a vacancy that the employee can, physically, perform.
While the bill sounds good on paper it has several key weaknesses.
First and foremost, “hiring preference” isn’t defined at all. As JD Supra reports:
“First, such a preference could mean that if all things are equal among candidates, it serves as a tiebreaker. It could also mean that it trumps the higher or better qualifications of other candidates, so if the minimum qualifications are met, the preference controls. Finally it could mean that previously injured employees are automatically placed at the front of the line, and other candidates need not even be considered—employers would have to seek out current or former employees who have reached MMI each time they seek to fill a position. Each interpretation has support.”
There also is no maximum time limit for how long an employee who has reached MMI is eligible for hiring preference.
Hiring practices are so occluded that it would be difficult to tell when an employer had failed to comply with this law. Employees rarely, if ever, know who else they are competing against. They never know why a candidate was chosen. Employers open and close positions that they never intend to hire for. Plausible deniability exists at every stage in the process. HR Publications are spilling a great deal of ink on the concept of hiring transparency, but it’s not something which has gained widespread adoption.
There’s also the fact that anyone who takes a workers compensation settlement usually is forced to end their relationship with that company as a condition of the settlement.
Those who return to work often find challenges ahead. Employees can certainly request reasonable accommodations under the Americans With Disabilities Act and should be granted those accommodations, but employers often do their best to drive previously injured employees out of their workplace due to fears that the employee will reopen the claim.
As a practical matter, it is often better to seek new employment with a new company in a new position rather than to continue with an old employer, especially if they fought hard against your workers compensation claim. Retaliation is illegal, but it’s not always easy to prove.