Over the past few years, North Carolina courts have struggled with the question of when an employee gains protection from retaliation under the state Retaliatory Employment Discrimination Act (REDA). REDA protects employees from retaliation based on exercise of rights under certain state laws, including Workers' Compensation, OSHA, and wage and hour statutes. In some circumstances, state courts have concluded that REDA does not apply unless the employee has actually filed an administrative complaint with the respective administrative agency.

Last week, the North Carolina Court of Appeals held that an employee who threatens to file a Workers' Compensation claim is protected under REDA, even if the actual claim is not filed until after he is fired. In Fatta v. M&M Properties Management, Inc., the plaintiff was a new employee who allegedly injured his back at work. He claimed that he told his employer that he intended to file a Comp claim unless the injury turned out to be a pulled muscle, and was fired a few days thereafter, before he actually filed the claim. The employer contended that the absence of an actual Workers' Compensation claim at the time of termination prevented the REDA action.

The court disagreed, distinguishing this case from an earlier case where the employee only requested that the employer reimburse her for a claimed work-related injury. In this situation, the plaintiff clearly claimed that he notified his employer of his intent to file the Comp claim before he was fired, and the employer allegedly had notice of this intent before it made the termination decision.

Despite this finding, the Court of Appeals affirmed summary judgment for the defendant. It concluded that the plaintiff failed to offer adequate evidence to rebut the employer's assertion that he was terminated for lack of demonstrated leadership skills. While the employer prevailed in this case based on the evidence, the court's holding opens the door to REDA claims even in the absence of a pending administrative Workers' Compensation claim at the time of termination.