Labor Code § 132(a) prohibits employers in California from retaliating against workers for filing or planning to file for workers’ compensation benefits. Employers who do so face criminal prosecution under state law for a misdemeanor charge. Injured workers can also be awarded monetary damages, including
The language of the statute states that:
132(a). 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. (1) 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 in 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.
Below, our California employment law attorneys will explain:
- 1. What is California Labor Code 132a?
- 2. What is a workers’ compensation discrimination claim?
- 3. What is considered workers’ compensation discrimination?
- 4. How do I know if my employer fired me because of the workers’ comp claim?
- 5. What kinds of damages can I get after a 132a claim in California?
- 6. What is serious and willful misconduct?
- 7. How do I file a California Labor Code 132a claim?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
California Labor Code 132a establishes a policy that employers should not discriminate against workers who are injured in the workplace. The labor code provides for damages for any employee who is discriminated against for filing (or intending to file) a workers’ compensation claim. 1
A Labor Code 132a claim can also seek to impose penalties against an employer who discriminates against a worker. Firing or threatening to fire an employee because the employee filed a claim for compensation may be charged as a misdemeanor. Employers also cannot threaten other employees who testify in another employee’s workers’ comp case.
This California law also applies to workers’ compensation insurance companies who advise, direct, or threaten the employer to fire an employee because of a workers’ comp claim. Insurance companies cannot threaten to cancel or raise an employer’s insurance premiums in order to get the employer to discharge an employee because of a workers’ comp claim.
Example: Pauline is a dog groomer at Shaggy Sheen Pet Grooming. When Pauline was brushing a dog, the dog bit Pauline, causing serious dog bite injuries to Pauline’s hand. Pauline had to seek medical care and could not use her hand for 4 weeks.
Pauline told her boss that she was going to file a workers’ compensation claim. Pauline’s boss said she should have been more careful and she was fired. Pauline’s boss likely violated Labor Code 132a because the boss fired the employee because of the workplace injury or workers’ comp claim.
In order to make a workers’ compensation discrimination claim under Labor Code 132a, the employee must establish the following elements:
- The employee filed or made known his or her intention to file a claim for compensation, or because the employee received a rating, award, or settlement in a compensation claim;
- The employer fired, threatened to fire, or discriminated against an employee because of the injury or workers’ comp claim; and
- The employee was singled out for disadvantageous treatment because of the injury or claim.2
An adverse action against an employee may include any type of treatment that disadvantages an employee. This generally includes wrongful termination or threatening to fire an employee. However, it could also include:
- Reducing the employee’s hours,
- Reducing the employee’s salary or hourly pay,
- Change in work duties,
- Scheduling the employee at a time that the employer knows the employee cannot work,
- Failing to promote the employee,
- Reporting the employee for immigration violations,
- Constructive discharge,
- Canceling an employment contract,
- Denial of benefits, or
- Encouraging other employees to punish the employee.
An employer does not necessarily have to follow through on the adverse action. For example, threatening an employee may be considered unlawful discrimination even if the employer never actually fires the employee.
Example: Martin is working on a construction site when he falls off scaffolding. Martin feels fine at first but the next day he notices back pain and tingling in his legs. Martin talks to his boss about going to the doctor.
Martin’s boss says if Martin tries to file a workers’ comp claim, he may find out that he isn’t going to be qualified for most of the upcoming construction site jobs.
Martin’s boss may be breaking California labor laws by making an implied threat that he won’t give Martin any work in the future if he reports the injury.
An employer may not directly say that they are firing the employee because of a workers’ comp claim. The employer may say the employee is being fired for other reasons to cover up the discrimination. However, it may be suspicious that an employee never had any significant disciplinary action until shortly after filing a workers’ comp claim.
The employee must first establish there are lost wages and benefits caused by the discriminatory actions, and establish discrimination by a preponderance of the evidence. At that point, the burden shifts to the employer to establish an affirmative defense, or a non-discriminatory basis for why the employee was fired.3
It may be a defense for the employer to show there was a reasonable business necessity for terminating the employee. For example, an employer is not compelled to reemploy an unqualified employee or an employee for whom a position is no longer available. Similarly, an employer may not be guilty of discrimination if the employee cannot perform the work without risk of re-injury or further injury.4
Example: Seth worked as a roofer for Slippery Slope Roofers. Seth slipped on some roofing shingles and fell off the roof, suffering a serious head injury. Seth filed a workers’ comp claim and was out of work for 3 months.
After 3 months, Seth returned to his job. However, Seth told his boss that because of the head injury, Seth could not work in high places. Seth’s boss said that there was no more work for him as a roofer.
Seth filed a claim for workers’ comp discrimination. However, even if Seth can establish a prima facie case for discrimination, the employer may have a reasonable business necessity. As a roofing company, the work that an employee has to do requires working in a high place. Seth may be no longer qualified for the position if he could not work on roofs.
California Labor Code 132a provides for specific damages. An employee who is discriminated against can receive:
- Increased compensation by one-half, up to $10,000;
- Costs and expenses (up to $250);
- Reimbursement for lost wages and work benefits; and
- Reinstatement to the prior position.
An employer commits “serious and willful misconduct” if it intentionally acts – or fails to act – with the knowledge that a serious injury will probably result. An example is an employer knowing that its factory has serious safety hazards but choosing not to fix them.
When an employee’s work injury is caused by the employer’s “serious and willful misconduct”, the employee’s workers’ comp benefits can be increased by up to 50 percent. (The worker can also receive up to $250 in costs and expenses.) But the total award may not exceed what the employee could have received in a traditional civil case.5
A workers’ compensation discrimination claim is handled by the California Workers’ Compensation Appeals Board (WCAB). A claim for reinstatement, increased compensation, and reimbursement is made by filing a petition with the WCAB.6
An employee has one year (1-year) to file a claim from the date of the discriminatory act or the date of termination.
The WCAB handles claims for increased compensation, reimbursement, and reinstatement. However, the WCAB does not determine whether the employer is guilty of the misdemeanor charge. The appeals board or the employee may complain about the misdemeanor violation to the Division of Labor Standards Enforcement (or the office of the public prosecutor).
If you have any questions about filing a workers’ comp discrimination claim or want to know if your labor rights were violated, contact your California employment discrimination attorneys.
Call us for help…
For questions about workers’ comp retaliation or discrimination or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
Our personal injury attorneys have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Labor Code 132a.
- Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1301 (“Although his injury was industrial, nothing suggests his employer singled him out for disadvantageous treatment because of the industrial nature of his injury.”)
- Id, at 1298 (“To warrant an award the employee must establish at least a prima facie case of lost wages and benefits caused by the discriminatory acts of the employer. The employee must establish discrimination by a preponderance of the evidence, at which point the burden shifts to the employer to establish an affirmative defense.”) (Citations omitted).
- See Judson Steel Corp. v. Workers’ Comp. Appeals Bd., (1978) 22 Cal.3d 658, 667. See also: Barns v. Workers’ Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, 530-531; Keshe v. CVS Pharm., Inc. (9th Cir. Oct. 17, 2017) 711 Fed. Appx. 396; Evenfe v. Esalen Inst. (N.D. Cal. July 24, 2016), Case No. 15-CV-05457-LHK; Gwin v. Target Corp. (N.D. Cal. Sept. 27, 2013), Case No. 12-05995 JCS.
- California Labor Code 4553. White v. Workers’ Comp. Appeals Bd. (Cal. App. 2d District Court, Aug. 22, 1968), 265 Cal. App. 2d 115, 71 Cal. Rptr. 49.
- See footnote 1 above. See also Department of Industrial Relations — Workers’ Compensation Appeals Board — How to file a petition for discrimination (Labor Code section 132a).