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 [email protected] 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.