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What should I tell a potential new employer, and what can they find out about my workers’ compensation claim?

On Behalf of | May 9, 2022 | Workers' Compensation |

When seeking a new job after your work injury has resolved, or your case has been settled, there is a difference between what is legally required to be disclosed to a new employer vs. what is “strategic.” What you must, should or may reveal varies with any given employer.

There is no legal obligation to voluntarily disclose a prior work injury. The extent of what the hiring employer can ask is limited by the Americans with Disabilities Act (ADA); and is generally limited to questions concerning a job candidate’s ability to perform the essential duties of the job. Employers in businesses requiring heavy physical duties and a higher risk of injuries may be more selective in their hiring process, to avoid someone they view as an injury risk. Many employers are ‘creative’ in the way they phrase questions to avoid violating the law. They may ask about the reason for gaps in your work history, or they may follow up and actually talk to the prior employers you list on an application or resume (especially an employer just before a gap in your work history).

As far as what the new employer can find out on their own – with a name, Date of Birth and Social Security Number, you would be AMAZED how much anyone can find out – if they know where to look. If the hiring employer requires certain forms or releases be signed, they could even be able to obtain “private” records of many different types, including “doctor-patient privileged” medical records. Similar to credit reporting companies, and criminal background checks, there are “Index” services that list claims reported to insurance companies, including Motor Vehicle Insurance, Homeowners Insurance and Workers’ Compensation insurance. Every ‘incident’ you may have ever been involved in – whether or not actually injured – might be revealed on one of these Index Reports.

In the digital age, many of your past activities might even have been revealed by you, your family or your friends. Even if you have never used a Social Media App or posted things online – you may have been ‘tagged’ by someone else who does. Many insurance companies now spend more time and resources to investigate Social Media than old-fashioned physical surveillance – and typically find more usable evidence this way.

The bottom line is that a potential employer (or anyone else for that matter) determined to know all they can about your past history has MANY ways to find out more about your life than you even remember.

You should carefully consider how you might phrase a response to questions involving your physical capabilities or gaps in your work activity. My personal recommendation – whether in court or a job interview – is to ALWAYS tell the truth, but also to Keep It Short and Simple (K.I.S.S.). You will never have to remember what you told to one person compared to what you told someone else, and you will never have to worry about “the truth” popping up at the worst possible time. Also, the less you say, the less you invite more questions about the issue – any issue.

Good luck in your job search!!!