Labor Code § 132a – Retaliation for Workers’ Comp Claims

Labor Code § 132(a) prohibits employers in California from retaliating against you for filing or planning to file for workers’ compensation benefits. Employers who do so face criminal prosecution under state law for a misdemeanor charge. You can also be awarded monetary damages, including

• lost wages,
• back pay,
• attorney fees, and
• possible reinstatement.

Below, our California employment law attorneys will explain:

• 1. California Labor Code 132a
• 2. Elements
• 3. Examples
• 4. Proving retaliation
• 5. Damages
• 6. Serious and willful misconduct
• 7. How to file
• Additional resources

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. California Labor Code 132a

California Labor Code 132a establishes a policy that employers should not discriminate against you for being injured in the workplace. The labor code provides for damages if you are 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 you. Firing or threatening to fire you because you filed a claim for compensation may be charged as a misdemeanor. Employers also cannot threaten you if you 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 you 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 you because of a workers’ comp claim.

Example: Pauline told her boss that she was going to file a workers’ compensation claim after falling down the stairs. 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.

2. Elements

In order to make a workers’ compensation discrimination claim under Labor Code 132a, you must establish the following elements:

1. You filed or made known your intention to file a claim for compensation, or you received a rating, award, or settlement in a compensation claim;
2. The employer fired, threatened to fire, or discriminated against you because of your injury or workers’ comp claim; and
3. You were singled out for disadvantageous treatment because of your injury or claim.²

3. Examples

An adverse action against an employee may include any type of treatment that disadvantages you. This generally includes wrongful termination or threatening to fire you. However, it could also include:

• Reducing your hours,
• Reducing your salary or hourly pay,
• Change in work duties,
• Scheduling you at a time that the employer knows you cannot work,
• Failing to promote you,
• Reporting you for immigration violations,
• Constructive discharge,
• Canceling an employment contract,
• Denial of benefits, or
• Encouraging other employees to punish you.

An employer does not necessarily have to follow through on the adverse action. For example, threatening you may be considered unlawful discrimination even if the employer never actually fires you.

Example: Martin talks to his boss about going to the doctor after a fall at work. 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.

4. Proving retaliation

An employer may not directly say that they are firing you because of a workers’ comp claim. The employer may say you are being fired for other reasons to cover up the discrimination. However, it may be suspicious that you never had any significant disciplinary action until shortly after filing a workers’ comp claim.

You 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 you were fired.³

It may be a defense for the employer to show there was a reasonable business necessity for terminating you. For example, an employer is not compelled to reemploy you if you are unqualified or your position is no longer available. Similarly, an employer may not be guilty of discrimination if you cannot perform the work without risk of re-injury or further injury.⁴

5. Damages

California Labor Code 132a provides for specific damages. If you are discriminated against, you 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 your prior position.

6. Serious and willful misconduct

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 your work injury is caused by the employer’s “serious and willful misconduct”, your workers’ comp benefits can be increased by up to 50 percent. (You can also receive up to $250 in costs and expenses.) However, the total award may not exceed what you could have received in a traditional civil case.⁵

7. How to file

You have one year (1-year) to file a claim from the date of the discriminatory act or the date of termination with the California Workers’ Compensation Appeals Board (WCAB).

Although the WCAB handles claims for increased compensation, reimbursement, and reinstatement, they do not determine whether the employer is guilty of the misdemeanor charge. The appeals board – or you – may complain about the misdemeanor violation to the Division of Labor Standards Enforcement (or the office of the public prosecutor).

Additional resources

For more information, refer to the following:

• Retaliation – Legal definition provided by the U.S. Department of Labor.
• Laws that Prohibit Retaliation and Discrimination – Overview by the California Department of Labor.
• Retaliatory Discharge Under Workers’ Compensation Law – Article in the N.Y.L. Sch. Law Review.
• Employees Should Be Treated Fairly: A Plea to Change the Workers’ Compensation Retaliation Statute – Cap. U. Law Review.
• Retaliatory Discharge for Filing a Workers’ Compensation Claim: The Development of a Modern Tort Action – Article in Workmen’s Comp. Law Review.

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