Workers’ Compensation Retaliation

California workers’ compensation law allows employees who are injured on the job to file a claim for benefits. In most cases, employers don’t pay out-of-pocket for these benefits because their workers’ compensation insurance carrier covers the claim. However, employers may still unlawfully discourage employees from filing claims based on the fear that their insurance premiums will increase. Even worse, some employers engage in workers’ compensation retaliation after they file a workers’ comp claim. At The Nourmand Law Firm, APC, we proudly represent workers whose employers retaliated against them for pursuing their legal rights.

Worker’s compensation retaliation occurs when an employer takes any type of adverse employment action against an employee based on the fact the employee filed for, obtained, or made it clear they were going to seek workers’ compensation benefits. More specifically, California Labor Code § 132a provides “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.”

If an employer violates § 132a, an employee is entitled to:

• A 50% increase in their workers’ compensation award, up to $10,000;
• Reinstatement of their job; and
• Reimbursement for last wages and benefits.

Section 132a explains that employers cannot “discriminate” against an employee for pursuing workers’ comp benefits. In this context, discrimination refers to any actions taken by an employer that alter the worker’s conditions of employment. For example, the following can all constitute discrimination:

• Termination;
• Unnecessarily transferring an employee to a less desirable position;
• Removing an employee’s seniority status;
• Reducing an employee’s salary;
• Placing an employee on a do-not-rehire list;
• Requiring an employee to use vacation time to go to a doctor’s appointment while allowing other employees to use sick time.

However, if an employer relies on a policy that applies equally to both injured and non-injured employees, it may not constitute discrimination.

Section 132a claims are heard by the Workers’ Compensation Appeals Board because these claims are based on a violation of workers’ compensation laws. However, employees facing discrimination or retaliation after pursuing workers’ comp benefits may also have claims under the Fair Employment and Housing Act.

For example, a worker who is fired after filing for workers’ compensation benefits may have a wrongful termination claim. Alternatively, an employer who fails to address the reasonable accommodations of an injured worker may face a claim of disability discrimination.

Proving a FEHA claim requires more than merely showing you successfully brought a claim under § 132a. However, both cases will involve much of the same evidence. Generally, to bring a claim under FEHA, a worker must show

1. They engaged in “protected activity;
2. They were subject to adverse employment action; and
3. There is a causal link between the worker’s protected activity and the adverse employment action.

In the vast majority of cases, filing a workers’ compensation claim is protected activity; however, that is not always the case. An experienced California employment lawyer can help workers understand the differences between these § 132a claims FEHA claims and how to effectively pursue them both.

If you filed for workers’ compensation benefits only to have your employer retaliate against you for doing so, your employer may have violated California employment laws. At The Nourmand Law Firm, APC, we can help you pursue a claim against your employer. We have decades of experience advocating on behalf of workers in all areas of employment law, including disability discrimination [link to Disability Discrimination page] and workers’ compensation retaliation. To learn more, and to schedule a free consultation today, call 800-700-WAGE (9243). You can also connect with us through our online contact form.