Poor Performance and Discrimination

California Labor Code section 132(a) states that it is unlawful for an employer to discriminate against an employee who has filed a workers’ compensation claim. However, if an employee starts to perform poorly at his or her job after the claim has been filed, that does not mean that it is impossible for the employee to be terminated. The key is to document the employee’s poor performance.

 

The employer should make sure that the employee’s personnel file is scrupulously documented with incidents of poor performance. Numerous warnings should be given and noted in the file. Even if the warning was given verbally, the manager or other person of authority should take the time to write the details of the incident in the personnel file. If the business has a particular method or policy for termination, it is important that method be followed. For example, if the business’s policy for termination includes three written warnings for particular types of infractions before termination of employment, then that policy should be followed and documented. If the policies were not followed, the business will need to demonstrate the reason for the deviation.

 

In the event that the employer is forced to fire the employee after a workers’ compensation claim has been filed, a well-documented history of rule breaking or poor performance can provide an invaluable layer of protection for the employer. A detailed history can provide the employer with the means to force the employee to prove that he or she was fired due to the workers’ compensation claim. In the absence of such a detailed document, it will be much harder for an employer to show that the termination of employment was not a result of impermissible discrimination under 132(a).

 

Moreover, case law indicates that simply documenting one employee’s poor performance is not an absolute bar to a case under 132(a). In at least one case, the California court of appeals found that where an employee had been terminated for documented poor performance, she could still proceed with her law suit because the business’s policies allowed for mistakes, and the termination policies had not been applied fairly to other similarly situated employees.

 

It is wise to consult with an attorney prior to termination an employee who has filed a workers’ compensation claim. Even if you have workers’ compensation insurance, it likely will not cover a claim under 132(a).  Contact me at (714) 516-8188 or email wcabdefense@hotmail.com to discuss how to protect yourself before a lawsuit is filed.

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