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.

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