As everyone knows, if you suffer an on the job injury you are entitled to Worker’s Compensation benefits. The injury may cause you to miss work or even suffer a permanent disability. California has two statutory systems in place to protect you from retaliation or discrimination as a result of your industrial injury. One statutory protection is enforced by the Workers Compensation Appeals Board (WCAB); another statute gives you the right to sue your employer if you are targeted because your injury has caused you to miss work or to become disabled. (The statutes also protect you from retaliation because you filed a claim for benefits. Irrational as it may seem, employers all too often “blame the victim” of an accident because the injury may drive insurance costs higher.)
1. Administrative Remedies
The WCAB is empowered to redressviolations of Labor Code § 132a which expressly prohibits an employer from discriminating against an employee because that employee:
● Applied for or intends to apply for workers’ compensation benefits; or
● Received a rating, award or settlement in a workers’ compensation action; or
● Testified or intends to testify on behalf of another employee in his or her case. (Labor Code § 132a(1)(3).)
Because workers’ compensation claims are often handled by the employer’s insurance company, the penalties available under Labor Code § 132a apply equally against an insurer who advises an employer to fire or otherwise take action against an employee because he or she filed a workers’ compensation claim. Labor Code § 132a(2).
“Discrimination,” as used in Labor Code § 132a has been defined as “treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.” Department of Rehabilitation v. WCAB (2003) 30 Cal.4th 1281, 1300; Crown Appliance v. Workers’ Comp. Appeals Bd.(200 115 Cal.App.4th 620, 626 (substantial evidence supported Workers’ Compensation Appeals Board’s (“WCAB”) finding that employer fired employee in retaliation for the worker filing a workman’s compensation claim). In order to state a claim under Labor Code § 132a, you “must show that [you] suffered an industrial injury, that the employer caused [you] to suffer some detrimental consequences as a result, and that the employer singled [you] out for disadvantageous treatment because of [your] injury.” Gelson’s Markets, Inc. v. Workers’ Comp. Appeals Board (2009) 179 Cal.App.4th 201, 210.
While employers are not required to reinstate or retain injured workers where “business realities” make that impossible, the employer still may not discriminate “in any manner” against employees who remain able to perform job duties if their former positions are still available. See Labor Code § 132a; Judson Steel Corp. v. WCAB (1978) 22 Cal.3d 658, 667. One example of discriminatory treatment is making an employee who has been injured on the job use vacation time rather than sick leave to attend medical appointments for work-related injuries.
Labor Code § 132a does not give you the right to bring a civil action against your employer. The way the statute works is that you must file a worker’s compensation claim and then, if you are discriminated against, seek appropriate penalties and protections from the WCAB which include:
● Criminal prosecution of the employer;
● Reinstatement and reimbursement for lost wages and work benefits;
● Increasing the employee’s workers’ compensation award by 50% (up to a total of $10,000); and
● Reimbursement for any costs and expenses (up to $250) incurred in proving the discrimination.
The appropriate law firm to assist you in prosecuting a Labor Code § 132a action is a firm that practices workers’ compensation. These attorneys specialize in obtaining recoveries for workers injured on the job. Ainley Law does notpractice in the field of workers’ compensation. You may find a list of practitioners in the Bay Area by clicking here. However, we provide this information to the general public, as all employees should be aware of these important rights.
2. Civil Lawsuits
If you have suffered retaliation or discrimination resulting from your industrial injury you have the right to bring a lawsuit in civil court even if you have also sought administrative remedies. You have protections both under Labor Code § 132a(recovery through an administrative process), and you also have protections under Government Code § 12920 et seq. In a landmark decision, the California Supreme Court in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, held that a worker who suffers an on-the-job injury is protected from discrimination both by Labor Code § 132a and also by the general prohibition against discrimination because of disability set forth in the Fair Employment and Housing Act (FEHA) (codified at Government Code § 12920, et seq.) The court expressly found that “section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. We disapprove any cases that suggest otherwise.” Id. at 1158. The court did go on to note that “disability” has a special meaning under workers’ compensation law which is not the same as “disability” under the FEHA. Therefore, an injured worker may pursue disability discrimination claims under Labor Code § 132a and under the Government Code (FEHA) only if he or she meets the statutory definitions of disability under the respective code sections. For example, Government Code § 12926 subdivisions (i) and (k) have extensive definitions of physical and mental disability which an injured worker may or may not fall within even though he or she has a “disability” within the meaning of the Labor Code. Finally, you should be aware that if you obtain a recovery for discriminatory treatment under Labor Code § 132a, you cannot also obtain a recovery for the same injury under FEHA: “To the extent section 132a and the FEHA overlap, equitable principles preclude double recovery for employees. For example, employees who settle their claims for lost wages and work benefits as part of a section 132a proceeding could not recover these damages as part of a subsequent FEHA proceeding.” City of Moorpark, supra, at 1158.
Thus, you may potentially recover remedies under both the workers’ compensation system and in a civil lawsuit. However, you should bear in mind that bringing your claim in one forum may compromise your claim in the other. Injured workers often have civil and administrative claims pending simultaneously. Generally, workers’ compensation remedies are smaller than the potential awards in a civil action; handled properly, there is no reason that a worker who is both injured and discriminated against should not recover in both forums.