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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

*At this time, we are only conducting phone consultations, please no walk-ins.

Injured on the Job? Fired shortly after filing a work comp claim?

Until a recent court opinion, Dutra vs. Mercy Medical Center, 209 Cal. App 4th 750(9/26/12), it was common for employee-attorneys to sue for termination in violation of public policy based on Labor Code 132a. This provision prohibits discharging an employee for filing a workman’s compensation claim. Now, it appears that section 132a alone will not support a termination cause of action.

The court spends a considerable amount of time discussing the City of Moorpark vs. Superior Court case, 18 Cal. 4th 1143 (1998). This seminal California Supreme Court case held that section 132a was not the exclusive remedy against disability discrimination and does not preclude an employee from suing under the California Fair Employment and Housing Act (FEHA). Thus, Dutra went on to state, Moorpark does not establish Labor Code 132a as the basis for a public policy tort, even though an industrially-injured worker could raise accommodation, dialog, discrimination as the basis for the termination. The focus of the court’s ruling was that 132a contains its own internal limitations (namely, a limit on the dollar fine and injunctive-type relief), and therefore to allow it to be used as a basis for a termination action would contravene an employer’s understanding that violation of the law would be limited to the penalties enunciated therein.

What troubles me is that the attorney handling the Dutra case did not apparently take advantage of the opportunity to plead public policy tort termination based on statutes beyond Labor Code 132a. The reason is not stated, but clearly a cause of action for Government Code discrimination based on physical or mental disability might have been alleged. (The opinion does not state the basis for the workman’s compensation claim, and it may have been physical or mental. Had the client alleged age, sex, race, national origin or physical and/or mental disabilities, I believe this case would have come out differently for this plaintiff.

Our experience trial counsel in Los Angeles County and all of our other California counties such as San Diego, Orange, San Bernardino, Fresno, Kern, San Francisco, Sonoma and Sacramento will examine your facts carefully to make sure that we have alleged ALL statutory basis’ for your claim. In a typical wrongful termination in violation of public policy tort claim, it is usual to have approximately 10 causes of action. Stephen Danz & Associates is honored to be the annual publisher of the Causes of Action checklist, widely used by many plaintiff=side California employment attorneys.