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.