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.

Key New Laws for Employers from 2016

This past year saw many new laws come into effect, passed by the California legislature, or signed into law by the Governor. Understanding changes in the law is vital to keeping your business in compliance and avoiding penalties, both civil and criminal.

AB 622 came into effect on January 1, 2016, and is now codified in California Labor Code 2814. This law was passed in an effort to prevent discrimination against those who are not permitted to work under federal law, as is the case for undocumented immigrants. Pursuant to Labor Code 2814, an employer may not use the E-Verify system to check whether an employee is authorized to work before making an offer an employment, unless such a check is required by federal law. The employer is still permitted to use the system to check the employment status of employees already employed by the employer.

Another new law is AB 2883, which will go into effect on January 1, 2017. This law creates a large change for small businesses and closely held corporations. The law currently in place states that although employers must carry workers’ compensation insurance for all employees, “employee” did not include offers or directors of private corporations where those officers were the sole shareholders, or all working members of a partnership or a limited liability company. The new law, however, revises these exemptions. As of January 1, 2017, the exemption for officers or members of the board of directors only applies if the member owns at least 15% of the corporation’s stock, or in the case of the general member of a partnership or managing member of an LLC, that the person elects to be excluded by executing a document affirming that he is a qualifying office, director, general partner, or managing member. This document is signed under the penalty of perjury.

Next, SB 623 modifies that benefits can be received under the Uninsured Employers Benefits Trust Fund and the Subsequent Injuries Benefits Trust fund. California law states that immigration status shall not have an impact on an injured workers’ ability to file for workers’ compensation. Under this new law, immigration status also will not act as a bar to applying for benefits under the UEBTF or the SIBTF.

Finally, under SB 560, the Contractors State License Board may now inspect certain job sites. This law allows the Board to conduct investigations and enforcement of licensees to make sure that they are carrying valid and current workers’ compensation insurance. The Board must also provide information regarding licensees to the Employment Development Department.

It is of central importance that your business conforms to the changing landscape of the law. Call me today at (714) 516-8188 for an appointment to discuss your business’s compliance with California Labor Code.

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.

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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