Termination or Discrimination for Filing a Workers’ Compensation Claim

Labor Code section 132a prohibits an employer from terminating or discriminating against a California injured worker for filing a workers' compensation claim. If a 132a violation is found, the worker can file a claim for 

Section 132a states:

  • an employer that terminates or discriminates in any way
  • against an injured worker
  • because of his or her work injury
  • is guilty of a misdemeanor1

If a violation of 132a is found, an injured worker is entitled to:

  • increased workers' compensation benefits up to $10,000,
  • reinstatement if he or she was wrongfully terminated,
  • recovery of lost wages2

An injured worker makes a “132a claim” by filing a petition within one year of the date of the termination or discrimination.

In this article, our California personal injury attorneys will explain:

1. What is workers' compensation discrimination?

To protect injured workers, California workers' compensation laws prevent an employer from terminating or discriminating against an employee for filing a claim for a work injury.3

Workers' compensation discrimination laws are contained in Labor Code section 132a. Discrimination in workers' compensation is often referred to as a “132a claim.”

The law states that:

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

is

  • guilty of a misdemeanor

and due to the employer's actions the employee can receive:

  • increased compensation of one-half, but in no event more than ten thousand dollars ($10,000)
  • costs and expenses not in excess of two hundred fifty dollars ($250)
  • reinstatement of his or her job
  • reimbursement for lost wages and work benefits caused by the acts of the employer4

Example: Tom tells his employer that he injured his shoulder at work the day before. The employer tells Tom to try to work the rest of his shift. At the end of his shift, the employer fires Tom for violating a company policy.

Tom can file a 132a claim against the employer for terminating him for filing a workers' compensation claim.

Even though California employees have a constitutional right to file a claim for a work injury and receive benefits,5 employers may not always be cooperative or understanding. A claim can disrupt business and increase workers' compensation insurance premiums.

1.1. What constitutes “discrimination” under section 132a

Termination is not the only act of discrimination an employer may take against an injured worker. The employer can take other actions that are considered discrimination, including:

  • requiring injured workers to use vacation time for medical appointments, while allowing other with health issues to use sick time6
  • a reduction in salary because of an injury7
  • refusal to place the employee on an eligible to rehire list8
  • a reduction in seniority9

However, employers that make business decisions that affect all workers equally can avoid a 132a violation. An injured worker has to show that he or she is treated differently from other employees that do not have work injuries.10

For example, there is no 132a discrimination if:

  • the employer terminates an employee if they do not have work within the worker's permanent work restrictions.11
  • the employee is laid off for incompetence.12
  • the employee's position is eliminated due to economic business conditions.13

Example: Joseph injures his neck at work. Joseph's doctor does not clearly say whether Joseph can go back to work. The employer does not let Joseph back to work until the doctor clarifies his opinion.

Joseph files a 132a claim. He loses the 132a claim because he is not treated any differently than a worker who has a non-work-related neck injury.

Joseph was treated the same as an employee with a non-work related neck injury. No employee would be allowed back to work until he or she was cleared by a doctor.

The 132a claim applies to discrimination against all injured workers. It applies to undocumented workers, and government employees including police officers and firefighters.

2. Awards in a 132a claims

An injured worker who wins a 132a claim will receive a one-half increase in compensation up to $10,000.

The term “compensation” refers to permanent disability. An injured worker who receives permanent disability can obtain one-half the dollar value of the permanent disability for the 132a discrimination. But the total amount cannot exceed $10,000.

Permanent disability is a dollar value of an injured worker's permanent loss of ability due to a work injury. The disability level is determined by a percentage rating of each injured body part and assigning it a dollar value.14

Example: Jill injures her hip at work. She is awarded permanent disability for the lasting damage to her hip worth $26,000. Jill also files a 132a claim because she was terminated after filing her workers' compensation claim.

The judge finds that Jill was fired for filing a claim for her injury. One-half of her compensation is $13,000. However, the limit under 132a is $10,000. The judge awards Jill $10,000 in addition to the $26,000 for her hip disability.

In addition to increased compensation, an injured worker can get his or her job back as well as wages lost due to being terminated.

Example: Dakota is terminated after being off work for her work injury for three months. She has no income since being terminated and still has no job.

Dakota wins her 132a case. The employer has to pay her back wages starting from her termination date, and they must also hire Dakota back.

If Dakota had permanent disability she would also receive one half the value of that permanent disability up to $10,000.

3. Differences between a 132a claim and a workers' compensation claim

A 132a claim is generally treated separately from a regular workers' compensation claim. The regular injury claim will normally be resolved before the 132a claim.

There is also a difference in who will be defending the claim for the employer.

Employers must have workers' compensation insurance in California. When an employee files a claim, it is usually turned over to the insurance company. The injured worker then deals directly with the insurance company. The insurance company may also hire an attorney to represent it in court.

Because discrimination is an intentional act by the employer, it is usually not part of an insurance policy. Therefore, the injured worker will deal directly with the employer on the 132a claim.

As the employer may not have a legal understanding of a 132a claim, it will usually hire their own attorney.

4. How to file a 132a claim

A 132a claim is filed with a legal document called a petition. The Workers' Compensation Appeals Board provides a blank 132a Petition filing packet for injured workers.

A 132a Petition can only be filed if the injured worker has already filed a claim for workers' compensation benefits. A regular workers' compensation claim is filed using an Application for Adjudication. The Department of Workers' Compensation also has instructions for filing the application.

The 132a Petition must be filed within one year of the date of termination or one year from the date the injured worker was discriminated against.15

Example: Mark files a workers' compensation claim on August 1, 2016. He is terminated on March 31, 2017 for poor performance.

Mark believes he was fired for filing his claim. Mark must file his 132a Petition by March 31, 2018. Mark must file a claim for workers' compensation benefits prior to filing the Petition for 132a benefits.

The claim for workers' compensation benefits creates a case number for the claim. The injured worker uses the case number to file the 132a claim.

5. How does 132a interact with other California discrimination laws?

An injured worker that has a 132a claim may also have a FEHA claim16 or a wrongful discharge claim.17 California's Fair Employment and Housing Act (FEHA) prohibits various types of employment discrimination.18

The 132a claim is heard at the Workers' Compensation Appeals Board. This is the same court that will hear the workers' compensation case. But an injured worker must make a separate claim for FEHA or wrongful discharge in civil court.

The injured worker must prove all the elements of a FEHA or wrongful discharge claim separately from a 132a claim. An injured worker can't simply take a 132a claim and call it a FEHA violation or wrongful discharge.19

FEHA and wrongful discharge claims provide a greater range of damages than a 132a claim, which limits monetary damages to $10,000 and back wages.

Damages for a FEHA claim include:

  • past lost earnings
  • future lost earnings
  • reinstatement
  • emotional distress
  • punitive damages
  • attorney fees20

Just because an employee prevails in a workers' compensation 132a claim does not mean he or she will win a FEHA claim or wrongful discharge claim.21 However, a monetary reward in a 132a claim may be counted against a FEHA claim.22

Example: Joan works as an administrative assistant. She injures her knee and stops working to have surgery. Joan wants to return to work but is told that her disability prevents her from doing her job, and she is terminated.

Instead of filing a 132a claim, Joan files a claim under FEHA for discrimination. There are much larger damages under FEHA than 132a.

The employer says that Joan cannot file a FEHA claim because the only option for injured workers are workers' compensation laws. Joan is allowed to file a FEHA claim, but she still has to prove all the elements of a FEHA claim.

It may be more difficult for Joan to prove her FEHA claim than a 132a claim. But it is worth it to Joan because she can recover more money in a FEHA claim.

6. Discrimination under 132a may never be clear

It is unlikely an employer will tell an injured worker he or she is being terminated because of his or her work injury. Employers will give alternate justifications that may sound reasonable.

But an injured worker who wants to protect his or her rights needs to consider the motives of the employer and take appropriate action.

Call us for help...

california workers' compensation attorneys
Call us at (855) LAW-FIRM

For help with filing a workers compensation claim in California or completing workers comp forms, contact us at (855) LAW-FIRM. Our firm helps police officers, firefighters and other workers to get compensation for their job-related injuries. We file employment discrimination lawsuits and help workers to obtain damages for wrongful discharge


Legal References:

  1. Cal. Lab. Code §132a(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. Id.

  3. Raven v. Oakland Unified Sch. Dist., 213 Cal. App. 3d 1347, 1365.

  4. Cal. Lab. Code § 132a.

  5. Cal. Const. Art. XIV § 4.

  6. Andersen v. Workers' Comp. Appeals Bd., 149 Cal. App. 4th 1369.

  7. County of Santa Barbara v. Workers' Compensation Appeals Board, 109 Cal. App. 3d 211.

  8. City of Los Angeles v. WCAB (2009) 74 Cal. Comp. Cases 1264.

  9. Albertson's Inc. v. WCAB (1994) 59 Cal. Comp. Cases 430.

  10. Gelsen's Markets v. WCAB (2009) 74 Cal. Comp. Cases 1313.

  11. County of San Luis Obispo v. WCAB (2005) 133 Cal. App. 4th 641.

  12. Donald Jones v. WCAB (1997) 62 Cal. Comp. Cases 196.

  13. Barns v. Workers' Comp. Appeals Bd., 216 Cal. App. 3d 524.

  14. See Permanent Disability Rating Schedule.

  15. Cal. Lab. Code § 132a 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.

  16. City of Moorpark v. The Superior Court of Ventura County (1998) 18 Cal. 4th 1143,1059.

  17. City of Moorpark, at p.1061.

  18. City of Moorpark, at p.1047.

  19. Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal. App. 4th 1367.

  20. https://www.dfeh.ca.gov/employment

  21. City of Moorpark, supra at p. 1059.

  22. Id.

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