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California Workers' Compensation: Labor Code Section 132a Nondiscrimination Policy

By Edited Nov 13, 2013 0 0

California Workers' Compensation Non Discrimination Policy

Worker's Compensation in California

The California Workers’ Compensation Labor Code specifically states in sub-section 132a there should not be discrimination against workers who are injured in the course and scope of their employment.

Although the statute sets forth specific instances which would constitute discrimination against industrially-injured workers, the Supreme Court, in Judson Steel, expressly held that any employee who suffers discrimination as a result of an industrial injury, even if the discriminatory conduct is not of the type specifically identified in the statute, will receive an increase in compensation up to $10,000.00, costs not to exceed $250.00, as well as reinstatement and reimbursement for lost wages and work benefits caused by the act of the employer.

As is more fully set forth in Barns and Raley's, Inc., an employee proves a violation of Labor Code §132a by showing that, as a result of the industrial injury, the employer engaged in conduct detrimental to the employee. Once the employee shows that, as the result of an industrial injury, the employer engaged in conduct detrimental to the employee, the burden shifts to the employer to show that its conduct was necessitated by the realities of doing business.

Business realities do not necessitate the termination of an injured employee's employment unless the employer reasonably believes that the employee is permanently disabled from performing his or her job, or will be disabled for such a long time that termination is necessary in light of demonstrated business realities. In order to reasonably believe that an employee is permanently barred from resuming employment, the employer must have some evidence that the injury is sufficiently permanent and stable to permit a prognosis within reasonable medical certainty. An injured employee's acceptance of vocational rehabilitation benefits does not constitute a "business reality" necessitating termination of the employment.

On the other hand, an employer is not guilty of discrimination for discharging an employee who has sustained a compensable injury where there is no work available that the employee could perform without risk of either re-injury or further injury. It has been well recognized (particularly by the Supreme Court in Judson Steel) that Labor Code §132a does not compel the employer to ignore the realities of doing business by re-employing unqualified employees or employees for whom positions are no longer available. Replacement of an employee may be justified by business realities when the employer reasonably believes that the employee is permanently disabled from performing his or her job, or will be disabled for such a long time that termination is necessary in light of demonstrated business realities.

Finally, Labor Code §132a does not prohibit an employer from terminating an employee for violating the employer's rules when the violation is neither caused by the consequences of the employee's injury nor related to a dispute over compensation benefits.

For example, in Jordan v. WCAB (1985), 175 Cal.App.3d 162, 50 CCC 688, it was held that an employer was not guilty of discrimination in terminating an injured employee where the employee was terminated not for his absence due to the industrial injury, but for his failure to notify the employer of his absence and this failure was part of an ongoing pattern of rule violations by the employee.

Labor Code §132a Nondiscrimination policy

It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment. (l) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee's compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.

(2) Any insurer that advises, directs, or threatens an insured under penalty of cancellation or a raise in premium or for any other reason, to discharge an employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and subject to the increased compensation and costs provided by paragraph (1).

(3) Any employer who discharges, or threatens to discharge, or in any manner, discriminates against any employee because the employee testified or made known his or her intentions to testify in another employee's case before the appeals board, is guilty of a misdemeanor, and the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.

(4) Any insurer that advises, directs, or threatens an insured employer under penalty of cancellation or a raise in premium or for any other reason, to discharge or in any manner discriminate against an employee because the employee testified or made known his or her intention to testify in another employee's case before the appeals board, is guilty of a misdemeanor.

Proceedings for increased compensation as provided in paragraph (1), or for reinstatement and reimbursement for lost wages and work benefits are to be instituted by filing an appropriate petition with the appeals board, but these proceedings may not be commenced more than one year from the discriminatory act or date of termination of the employee. The appeals board is vested with full power, authority, and jurisdiction to try and determine finally all matters specified in this section subject only to judicial review, except that the appeals board shall have no jurisdiction to try and determine a misdemeanor charge. The appeals board may refer and any worker may complain of suspected violations of the criminal misdemeanor provisions of this section to the Division of Labor Standards Enforcement, or directly to the office of the public prosecutor.

1989 Note: This section is applicable only to injuries occurring on or after January I. 1990.

*The information contained in this article is general and not intended as a substitute for legal advice. Changes in the law or specific facts of a case may result in legal interpretations different than those presented here.

For more information on workers’ compensation see the following;

 

California Worker's Compensation What to Do If You are Injured at Work

California Workers' Compensation: What to Do If You are Injured at Work

 

California Worker's Compensation Permanent Disability

California Workers' Compensation: Permanent Disability Benefits

 

California Worker's Compensation Temporary Disability

California Workers' Compensation: Temporary Disability Benefits  


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