How to Demonstrate Differential Treatment Under 132(a)

California Labor Code 132(a) makes it illegal for an employer to take adverse action or differential treatment against an employee who has filed a workers’ compensation claim. Adverse action can include a variety of actions, including firing or demotion. An employer who takes any type of adverse action against an employee who has filed or is about to file a workers’ compensation claim can expect that employee to soon file a suit under 132(a). In order to be successful with this type of case, an employee must prove: 1) he filed or expressed an intention to file a workers’ compensation claim before the adverse action was taken; 2) the employer took adverse action, such as firing, threatening to fire, or otherwise discriminated against the employee; and 3) the employer acted this way as a direct result of the employee’s work-related injury or workers’ compensation claim.

Proving that an employer’s action is differential treatment is obviously essential for an employee to be successful in a 132(a) claim. The California Supreme Court articulated a particular standard for this in Dep’t of Rehabilitation v. WCAB (Lauher), 30Cal. 4th 1281 (2003). In that case, the California Supreme Court held that it is not enough in a 132(a) case for an employee to demonstrate that he or she suffered a negative consequence from the employer’s actions. Rather, the employee must show that the employer discriminated against the employee, meaning it showed differential treatment based on the work-related injury. For example, if an employee shows that he or she suffered an adverse consequence due to a change in company policy, this would not be sufficient to succeed in a 132(a) case. An employee would need to show that the policy was changed or applied in such a way that the employee suffered differential treatment because of the work-related injury.

The case of Gelson’s Markets, Inc. v. WCAB is a case that applied the Lauher standard. In that case, an employee filed for discrimination because the employer refused to allow the employee to return to work after receiving a doctor’s release that was not entirely accurate. The court ultimately found that the action was not discriminatory because the employer would not have treated an employee who was not suffering from a work-related injury any differently.

If you have questions about 132(a) and differential treatment, contact me today at (714) 516-8188. This area of law is complex, and I have extensive experience helping my clients and their businesses.

Basic Elements of a 132(a) Claim

California Labor Code Section 132(a) states that an employer may not discriminate against an employee who has filed a claim for workers’ compensation. Logically, these claims are typically filed in conjunction with workers’ compensation claims. There are very specific elements that an employee must prove in order to be successful in making a claim that they were unlawfully discriminated against in contravention of section 132(a).

First, an employee must prove that adverse action was taken against him or her. This typically takes the form of termination of employment, but it can take other forms. For example, a demotion, changing the employee’s hours to an undesirable shift, or moving the employee’s location to a vastly different and inconvenient location could all be examples of adverse action.

Second, an employee must also prove that the adverse action was taken because of the workers’ compensation claim or their threat to file such a claim. In other words, merely being terminated from employment is insufficient; an employee must provide evidence that they were terminated due to their claim. From a business’s stand point, this is why it is vital to document under-performance or other disciplinary action taken against an employee following a work-related injury. If it becomes necessary to terminate or demote such an employee, having a documented history of poor performance becomes important to a defense to a claim under 132(a).

Third, an employee must demonstrate that he or she had a right to keep the benefit or status that he or she lost when the employer took the adverse action, and also that the employer had a legal duty to continue providing that benefit. In Department of Rehabilitation/State of California vs WCAB (2003), 30 Cal. 4th 1281; 68 CCC 831;444, the California Supreme Court set out that this was the employee’s burden of proof in a claim under 132(a). The Supreme Court went on to point out that the California legislature obviously wanted to prohibit treating a worker injured on the job differently, solely due to the fact that they were injured while at work.

The Court noted: “To warrant an award the employee must establish at least a prima facie case of lost wages and benefits caused by the discriminatory acts of the employer. The employee must establish discrimination by a preponderance of the evidence at which point the burden shifts to the employer to establish an affirmative defense.” Id. Internal citations omitted.

If your business is faced with a discrimination suit under Section 132(a), contact me today at (714) 516-8188. We will discuss the elements of the claim with you and your avenues for defense.

What Violates 132(a)?

California Labor Code 132(a) clearly states that the policy behind this section is that there should not be discrimination against employees who are injured at work. The code goes on to outline that any employer who takes adverse action against an employee due to the employee making a workers’ compensation claim is subject to both civil and criminal penalties. These penalties can be severe, and it is important to have a firm grasp of what does and does not violate the terms of section 132(a).

The most obvious type of violation is where an employer takes direct adverse action that is discriminatory. An employer will expressly violate the statute if the employer terminates or threatens to terminate the employment of an employee because the employee has filed or expressed the intention to file a workers’ compensation claim, the employee receives an award for a workers’ compensation claim, or testified before the Workers’ Compensation Appeals Board for another employee’s claim. The employer will also have expressly violated this section for discriminating against the employee in any way for these same reasons. Discriminatory action can include such actions are not limited to termination; they can also include other adverse actions, such as changing a shift to hours the employer knows the employee cannot work. The law also covers other discriminatory acts by the employer, such as when an employee is penalized for being injured on the job or from missing time from their job due to an injury sustained in the workplace.

Insurers are also included in prohibitions under 132(a). An insurer may not tell an employer to terminate the employee because an employee has filed for workers’ compensation benefits, received an award of workers’ compensation benefits, or testified before the WCAB for another employee’s workers’ compensation claim. Under this section, an insurer is prohibited from telling an employer to fire an employee when that is coupled with a threat to cancel a workers’ compensation insurance police, to raise the insurance premium, or other adverse action against the employer.

These cases are typically filed in conjunction with an underlying workers’ compensation claim. The employee must do more than simply allege that they suffered adverse consequences from the employer. The employee must also prove that they suffered these adverse actions because of their workers’ compensation claim.

It is very important to protect your company from potential claims under 132(a), as a successful suit can be very financially damaging or even fatal to your business. If your business is facing a suit under 132(a), contact me today at (714) 516-8188 to discuss it.

What is Workers’ Compensation Insurance What Does it Cover?

California law requires that employers carry workers’ compensation insurance. There are very few exceptions, and under new law coming into effect on January 1, 2017, these exceptions are shrinking. As insurance premiums can be significant, it can be helpful to understand exactly what workers’ compensation is designed to achieve, and what it may or may not cover.

Workers’ compensation insurance is designed to pay for any work-related injuries or illnesses sustained by your employees. As with any other insurance system, your monthly premiums will cover certain types of workers’ compensation claims from your employees. Your employees’ hospital and medical expenses that are necessary to treat or diagnose the injury are covered. The insurance will also pay for the rehabilitation and retraining of the employee. The insurance will also cover disability payments. There are several different types of potential disability that would be covered by insurance, including 1) temporary total disability, 2) temporary partial disability, 3) permanent total disability, and 4) permanent partial disability. A doctor will be required to diagnose which type of disability is sustained by the employee.

Perhaps even more important to understand is what is not covered by your workers’ compensation benefits. Of course, these situations may vary and it is important to review carefully the provisions of your individual policy. However, there are several situations that are generally not covered by workers’ compensation insurance. Most commonly, claims for discrimination under 132(a) are not covered by workers’ compensation insurance policies. This is part of why it is so important to avoid taking adverse action due to a workers’ compensation claim filed by an employee. Other injuries suffered by employees may also be excluded from coverage. These situations include intentional actions by an employee, such as if the employee is intoxicated, self-inflicts the injury, or if the employee starts a fight while on the job.  Of course, injuries suffered off the job are also excluded, although in some situations, off the job injuries that are aggravated or exacerbated by on the job actions or injuries may fall under coverage.

If you have questions about the purpose of workers’ compensation insurance or whether your business is required to cover it, call me today at (714) 516-8188. We can discuss your business and its requirement for workers’ compensation insurance coverage.

Retaliation and How to Equip Your HR Department

Retaliation or discrimination against an employee who has filed a workers’ compensation claim can result in harsh penalties for a business. This also applies for employees who have already received a settlement for their compensation claim. Types of retaliation can include actions such as terminating employment, demotion, reducing an employee’s benefits, or reassigning the employee to a different location. In the event of a retaliatory action by an employer, the Division of Workers’ Compensation (DWC) and the Department of Fair Housing and Employment (DFEH) will be involved in an employee’s claim under Labor Section 132(a). These claims, if proven true, can result in harsh civil and even criminal penalties for an employer. The best way to handle these claims is to prevent them before they even start.

 

The most obvious way for an HR Department to prevent these types of claims is to not take any of the types of actions that may be considered retaliatory, such as termination or demotion. Unfortunately, it is not always possible to maintain the status quo.

 

In the event that termination or demotion is required due to an employee’s poor performance, it is vital that the poor performance is well-documented. HR should follow the business policies for termination or demotion, and should make sure that any policies are applied equally to all employees, regardless of whether they have filed any type of workers’ compensation claim in the past. Your HR Department should have carefully articulated policies and rules for termination, demotion, or changing an employee’s position. These rules need to be clearly broadcast and set out to the managers. It is essential to make sure these policies and procedures are followed and applied fairly and equally to all employees. An emphasis on creating written reports documenting problems with a particular employee should be made in order that managers understand that the key to avoiding future problems is building a file of written instances of past misconduct by the employee.

 

In the event that an employee does file a retaliation suit against the business, it is possible that the way to resolve this issue would be to settle the claim together with the underlying workers’ compensation suit, or perhaps to put the employee back to work. Both of these options, as well as any others, require thorough discussion with an attorney, and the HR Department should not attempt to handle the issue alone. As mentioned, mishandling and losing a retaliation suit can result in harsh penalties, and the issue should not be treated lightly.

 

The best first defense is to prevent this type of law suit from beginning. Contact me at (714) 516-8188 or email wcabdefense@hotmail.com to discuss your policies and whether they conform with the law.

Overview of California Labor Code 132(a)

The policy of California law that workers shall not be discriminated against is codified in California Labor Code 132(a). The statute says that “any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed” a claim against the employer is guilty of a misdemeanor. The law does not stop there, however. Employees who have merely notified their employer of their intention to file are also protected by 132(a), as well as employees who have already received a settlement or award for a workers’ compensation claim.

 

In the event an employer is found to have violated 132(a), the employer will be liable for money damages. These damages are also contained in 132(a), which states that the employee’s salary will be increased by up to one half, but not more than $10,000. The employee may also recover expenses up to $250, and is entitled to reimbursement for lost wages and benefits that were caused by the employer’s actions, as well as reinstatement. As the offense is also a misdemeanor, it is also punishable by jail time up to six months, a fine of $1,000, or both.

 

Under 132(a), an employee alleging discrimination may bring a complaint before the Workers’ Compensation Appeals Board to request the compensation provided under 132(a) and reinstatement. Moreover, under City of Moorpark v. Superior Court, an aggrieved employee is not limited to those damages found under 132(a). Instead, an employee may also seek damages under the Fair Employment and Housing Act, which include injunctive relief, compensatory damages, punitive damages, and attorney fees.

 

An employer’s workers’ compensation insurance likely does not cover a claim under 132(a). It is therefore crucial that an employer understand that discrimination against an employee due to a pending or potential workers’ compensation suit is to be avoided at all costs. In order to avoid such a suit it is advisable to not terminate an employee who is on leave due to a workers’ compensation claim or who has filed a workers’ compensation claim. The exception to this rule could possibly come with documented poor performance. It is also important to not demote or reduce the salary of the employee as a result of the work-related injury.

 

I have immense experience in practicing in this area of law, and would value the opportunity to discuss its ins-and-outs with you. Contact me at (714) 516-8188 or email wcabdefense@hotmail.com to set up a consultation so we can plan how to best protect your business from this type of claim, or talk about a strategy if you have already been sued.

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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