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California Labor Code 132a clearly states that it is illegal to fire, threaten to fire, or discriminate in any manner against an employee who has or intends to file a claim for workers’ compensation.
To successfully claim discrimination under 132a, an employee must establish the following:
Discharging an injured employee, threatening to discharge an injured employee, or otherwise discriminating against an employee because of a work injury claim is a misdemeanor, and may subject the employer to an uninsurable penalty.
The penalty for 132a discrimination may include any or all of the following:
Although Labor Code 132a seems straightforward, it is actually very complex and nuanced. For example, the employee does not need to prove that the employer intended to harm him to win a 132a discrimination claim. He only needs to prove that the action was taken by the employer as a consequence of the employee’s workplace injury or workers’ comp claim, and he was treated more adversely than other employees.
Furthermore, although the language of the law seems to require that the firing or discrimination be directly related to the industrial injury or claim, employers often have other cause to fire an employee and must be very careful that they are not treating the employee differently only because of the injury. In other words, even employees who have suffered workplace injuries are required to abide by company policies, but the line can be blurred.
Although an employer may not treat an injured worker adversely merely because of a pending workers’ compensation claim, the law does not require the employer to give additional privileges or rights not afforded other non-injured employees. For example, a probationary employee may not be discharged as a result of a work injury, but he does not satisfy the probationary period while on disability, and would therefore return to work at the same status that he was prior to injury. If that resulted in later termination within the probationary period for other non-suitability, the discrimination allegation would probably fail.
If the employer has a uniformly applied personnel policy, discrimination is more difficult to prove. When the employer terminates all employees after 3 days of no call/no show in absence of medical documentation regardless of cause (illness, cancer, pregnancy, work injury, etc.), there was no discrimination. In fact, preferential treatment to industrial injuries in such a situation may substantiate a discrimination claim for worker fired without work injury.
A Certified Specialist in Workers’ Compensation is best able to represent an employer who has been accused of 132a discrimination. We have successfully defended employers against 132a claims since 1992 and are here to help.