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 [email protected] to discuss your policies and whether they conform with the law.

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 [email protected] to discuss how to protect yourself before a lawsuit is filed.

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