Labor Code Section 132a declares it is the "
...policy
of this state that there should not
be discrimination against workers who are injured in the course and
scope of their
employment."
To enforce that policy, the statute makes it a misdemeanor for an
employer
to discharge, threaten to discharge or in any manner discriminate
against an employee
because he or she has filed or made known an intention to file a claim
for compensation or
an application or because the employee has received a rating, award or
settlement.
Not only is the employer engaging in such conduct subject to criminal
penalties, that
employer must also increase the employee's compensation by one-half up
to a maximum of
$10,000, pay costs and expenses up to $250, reinstate the employee
and/or reimburse all lost wages and work benefits caused by the
discriminatory acts of the employer.
These
protections, and employer penalties, apply as well to any discrimination
against an employee who testifies or makes known an intention to testify
in another employee's case before the appeals board.
All 132a cases are tried by the Workers Compensation Appeals Board. The
Board
may refer, and any worker may complain of, suspected violations of the
criminal
misdemeanor provisions to the section to the Division of Labor Standards
Enforcement or
directly to the office of the public prosecutor who will prosecute any
misdemeanor filing.
It is the employee's burden to show a violation of Labor Code 132a. To
institute
proceedings, the employee must file a Petition with the WCAB within one
year of the date
of the discriminatory act (or date of first knowledge).
In order to succeed with his or her
Petition, the employee must prove four elements:
1. The employer took action against the employee;
2.
The action was taken because of the workers' compensation claim or
injury;
3. The action caused detriment to the employee;
and
4.
This was disparate treatment by the employer.
The employee need not show that there was any "intent" to discriminate.
So long as
the employee establishes that the action taken by the employer was
triggered by the industrial injury or claim,
that it in fact caused detriment and it was disparate treatment,
aprimafacie case is established.
Action taken against the employee can be anything from job termination
to reduction
of seniority, demotion, reduction in pay, reducing or terminating
healthcare benefits, refusal
to offer job accommodation, transferring the employee, even failure to
correct employment
records or provide a merit or safety award.
In many cases, it is sufficient for the injured
worker to show that the action in question occurred within a relatively
short time of filing a
claim, having a work injury, or making some claim for benefits for the
first three elements
to be proven.
That last element, showing of disparate treatment, was missing from the
WCAB
analysis until the 2003 Supreme Court decision in Dept. Of
Rehabilitation/State of California
v. WCAB (Lauher). This case changed the standard to be applied to
a 132a claim analysis.
Prior to Lauher,
the WCAB had found violations of 132a even when an employer was
following company policies which
were being applied to both industrial and non-industrial
situations. "Discrimination" was used in the context of whether or not
the action taken was
detrimental to the injured employee, not whether the employee was
treated differently from
other employees.
Prior to Lauher, 132a violations were routinely found for
termination of an injured
worker on TD, for failure to reinstate or promote in accordance with
union contract
agreements or for terminating payment of health insurance benefits while
an employee was
out on leave, even when such actions were in conformance with written
company policy.
Employers became timid about taking any adverse action against an
employee who was
injured on the job, even actions which were routine for those employees
out on non-industrial leave. Employees with work injuries became a
protected class under Labor Code 132a.
Lauher
clarified that in order to prove a 132a violation, the employee
must prove
"discrimination;" he or she must show treatment by the employer that is
different from how
the employer treats other employees. No longer does the law consider
employees with work
injuries as a special and protected group.
In the Lauher case, the applicant's sick time and/or
vacation leave time was docked
whenever he took off for medical treatment for his work injury. He
claimed this a 132a
violation; the action was clearly related to his industrial injury. He
also claimed that he
should have been paid TD benefits for the days off, and refusing to pay
those also violated
132a.
The WCAB agreed and found a 132a violation. However, the Court
overturned the
Board decision. The Supreme Court first found that there was no legal
entitlement to TD,
and failure to pay could therefore not violate Labor Code 132a. They
went on to state that
"discrimination" under LC 132a requires a showing that an injured worker
is somehow
singled out and treated differently from other employees because the
employee had been
injured or made a claim. Lauher failed to show that he was treated any
differently than
employees with non-industrial injuries, who were subject to the same
rules and were required to use their sick leave when away from the
office for medical treatment.
The Appellate Court, in an unpublished opinion from 2009 (Cantrell
v. WCAB) cited
Lauher
in this case where an employer terminated an injured worker who refused
to take a
drug test after his industrial injury. Per corporate policy, this was
required for all employees
involved in an accident or injury at work, and the personnel manual
advised employees that
refusing to submit to a request for a drug test constituted grounds for
immediate termination. When the applicant failed to show up for
the test, he was terminated.
The employee argued that as the request for the test arose because of an
industrial injury, terminating him for refusal to comply violated Labor
Code 132a. The Court did not decide the case, but remanded it to the
Board, noting that neither the WC] nor the WCAB considered the issue of
whether or not the policy discriminated against employees with
industrial injuries nor addressed whether or not the employer could show
a business necessity for the policy.
However, in making the remand, the Court stated that Labor Code 132a's
anti-discrimination
language is "meant to prohibit treating injured employees differently,
making them suffer disadvantages not visited on other employees, because
the employee was injured or had made a claim."
In Gelson's Markets v. WCAB (Fowler),
another 2009 case, the applicant's treating
doctor was "of the impression" that applicant could carry out his job
duties, and did not
provide any specific work restrictions, although the employer asked that
he do so. The AME
wrote a report indicating no need for work restrictions, but did find a
25% loss of pre-injury
capacity for various activities. The doctor thought an attempt to return
applicant to his usual
and customary job was warranted, but stated that if there was any
increase in his symptoms, the applicant would be a Qualified Injured
Worker. Defendant did not return applicant to work because they did not
believe that there was a credible and clear medical opinion as to
whether or not applicant could work and what the work restrictions, if
any, might be. Not until the AME was deposed and confirmed that the
applicant could return to his usual and customary job without
restriction was the applicant reinstated.
The Judge found a violation of 132a, noting that at least as of the
AME's report, the employer had adequate medical information that
applicant could return to work.
The WCAB commissioners found that the earlier release from the treating
doctor provided the employer with sufficient information to return the
applicant to work, and awarded more in lost wages than had the judge.
However, the Court overturned the WCAB, stating that the Board had
failed to follow the standard established by Lauher. The Court
found that the applicant had made no showing that the employer treated
him differently from employees with non-industrial injuries.
Absent such a showing, the applicant had not met his burden of proving a
violation of 132a. Until that element is shown, the burden does not
shift to the employer to establish the affirmative defense of "business
necessity" or reasonableness.
In a line of cases,
the Board has found 132a violations when an employer has
terminated an injured worker while that worker is out on temporary
disability. After Lauher,
however, an employer should be able to defeat a 132a by showing the
termination is in
accordance with company policy applied to all employees.
Once the employee has met his burden, no 132a violation will be found if
the
employer can show the action was reasonable and due to "business
necessity." As with
"reasonable accommodation" questions in an ADA or FEHA venue, "business
necessity"
is specific to each employer.
The court stated in Barns v WeAR, a 1989 case, that an
employer may refuse to
reinstate an injured worker to an available position without violating
LC 132a if, "...at the
time reinstatement is sought, the employer reasonably believes ..."
that the worker is unable to safely perform the job, if "
...business
realities
...compel
the employer to replace the worker
..."
or if "
...
the employer reasonably believes that the worker ispermanently
disabled from performing the job, or will be disabled for such a
long time that termination is necessary in light of demonstrated
business realities."
The WC] ultimately decides what is "reasonable" and what can be
considered proper
"business realities." A business slow-down resulting in worker lay-offs
or reduction in hours
or the economic unfeasibility of keeping a position open indefinitely
can all be "business
realities" supporting the business necessity defense. However it may be
insufficient to have
only employer witness testimony; documentation, if available, should be
offered into
evidence.
Some cases may require expert testimony from an economist or vocational
expert.
An employer can also defeat a 132a claim by proving that the action
taken was not
related to the injury or reporting of a claim. An employer who has
terminated an employee
for cause should present testimony along with documentation from the
employee's personnel file to support a "for cause" termination. Even
though "intent" is not an element which the injured worker need show to
prove a violation of 132a, evidence that the employer had no knowledge
of the alleged injury at the time the detrimental action was taken may
prove that the action could not have been related to the injury or
filing of a claim.
If the evidence and testimony show that the employer is inconsistent in
applying
personnel policies, that can support a finding that application of a
more harsh version of the
policy to the injured worker is a violation of Labor Code 132a. The
prudent employer will
insure that all policies are uniformly applied to all employees, and
that they are in compliance with ADA and FEHA statutes; no employer
should have a blanket policy that all employees must "be 100%" to work
or make statements that an injured worker will be allowed back only when
all restrictions have been removed by the doctor.
It is also best for an employer to show a genuine attempt to communicate
with injured
workers. In Macys of California v WCAB(Cesario-Whites, the
applicant's physician told her
to stay off work for 3 months.
The insurance company's nurse case manager spoke to the
doctor then advised the employer that the doctor had agreed that the
applicant could do
modified duty. On receiving this information,
the employer sent a letter to the applicant
advising her to return to work "immediately." However, the applicant was
not privy to the
conversation between the doctor and the nurse case manager.
She relied on what her doctor had told her, believing the employer's
letter was sent in error. When she did not report for work, she was
terminated five days later,
and this was found to violate Labor Code 132a. The lack of
communication from the employer to the injured worker was noted by the
judge.
However, in UPS v WCAB (Gonzales), the applicant was
released by her doctor to
return to work in a matter of days but had not returned to work after
some weeks and failed
to respond to inquiries from her employer.
A labor management meeting was arranged,
applicant failed to attend, and she was discharged.
The finding of no discrimination by the
WC] was upheld by the appeals court.
Employers need not be afraid of Labor Code 132a.
All employees should be treated
fairly and equally. The Supreme Court,
with the Lauher case,
has clarified that Labor Code
132a was not designed to provide preferential treatment to those injured
on the job. The law
is to prevent employers from taking adverse action against employees for
having injuries on
the job, for reporting those injuries, or for assisting other employees
who report their work
injuries. Lauher and subsequent cases allow employers to set and
follow policies, which
apply to all employees, without fear of liability for lost wages,
reinstatement and up to
$10,000 in penalty for discrimination.
The prudent employer keeps written documentation,
communicates with employees and treats all employees consistently and
fairly. That prudent employer need no longer fear the Labor Code 132a
claim.
