No Liability For Worker’s Comp. Discrimination Absent Proof of Better Treatment For Non-Industrially Injured Employees

By May 25, 2010Articles

Labor Code Section 132a penalizes an employer who discriminates “in any manner” against an employee who has filed a workers’ compensation claim or received an award or settlement. Because a 132a violation is uninsurable, the employer must pay its own attorneys fees in defending against such a claim and is directly liable for any violation of the statute. A Section 132a award which may be issued years after the 132a claim is initially filed, may include job reinstatement, full reimbursement for lost wages and benefits and increased compensation benefits up to $10,000.00.

To warrant an award pursuant to section 132a, the employee must establish, by a preponderance of the evidence, at least a prima facie case of lost wages and benefits caused by the employer’s discriminatory acts. If a claimant makes such a showing, the legal burden shifts to the employer to establish an affirmative defense.

The courts and WCAB have traditionally interpreted Section 132a liberally to achieve the goal of preventing discrimination against workers injured on the job. However, this does not mean that any action by an employer that is detrimental to an employee injured at work violates the statute.

The California Supreme Court in the landmark case of Department of Rehabilitation v. WCAB (Laurer), (2003) 30 Cal.4th 1281, articulated the current legal standard for establishing a prima facie case of discrimination prohibited by Section 132a. The claimant must show that he suffered an industrial injury and that the employer caused him to suffer some detrimental consequences as a result. The injured worker must also show that the employer “singled out” the industrially injured worker for detrimental treatment because of the industrial nature of his injury and treated the worker differently by making him suffer discriminatory treatment not visited on other employees because the employee was industrially injured or had made a workers compensation claim.

In Gelson’s Market v. Worker’s Comp. Appeals Board, (2009) 179 Cal.App.4th 201, the WCAB determined that the employer violated Section 132a by failing to reinstate an injured employee after being presented with a return-to-work release (which the employer believed was ambiguous) from the employee’s physician. However the Court of Appeal annulled the award under Laurer because the injured worker made no showing that his employer treated him differently from non-industrially injured workers. The injured claimant made no showing that his employer would have reinstated a non-industrially injured worker who’s provided the same medical release.

In defending against a retaliation or discrimination claim under Section 132a claim, the best defense for an employer is to treat all injured employees in the same manner. Avoid adopting different and more restrictive personnel policies and practices for on-the-job injuries.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at 619-525-7000 or