California’s Labor Code provides protections for workers who are injured and file a claim with their employer. Currently, about 25% of our case load state-wide involves workers who have suffered an industrial injury and have not been brought back to work, or forced to return under circumstances designed to force them to quit, or to send a “message” to other workers that injuries at work, which are then reported to the work comp carrier, will not be tolerated. Employers have attempted to discourage claims in a number of ways. Among them, force injured workers to seek “first aid” instead of going to their or the company’s doctor; to give unpaid time off (“PTO”) for recuperation; to order the employee to use their own, private insurance (with high co pays in many cases); to publicize a possible (or actual) claim to co workers and to advise them that bonuses based on “accident free” days are in jeopardy for all; to actually demote employees on return from leave; to transfer employees returning from leave to distant locations, or to work weird hours, take split shifts, etc. If you are a victim of discrimination based on a work injury, please contact us. Remember that your employer may not rely just on the work comp laws, but must in fact comply with the anti-discrimination laws of California. These include accommodation of medical conditions. This accommodation must include a dialog with you to determine what other jobs you can do, or what limitations might be reasonable on the job you currently have (while still providing that you can do all the essential elements of that job). Additionally, employers must conduct a “dialog” with you to determine if the accommodations available will allow you to work within your doctor’s limitations. Here is California’s basic protection for industrially injured workers:
132a. It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.
- 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.
- Any insurer that advises, directs, or threatens an insured under penalty of cancellation or a raise in premium or for any other reason, to discharge an 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 subject to the increased compensation and costs provided in paragraph (1).
- Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the employee testified or made known his or her intentions to testify in another employee’s case before the appeals board, is guilty of a misdemeanor, and the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.
- Any insurer that advises, directs, or threatens an insured employer under penalty of cancellation or a raise in premium or for any other reason, to discharge or in any manner discriminate against an employee because the employee testified or made known his or her intention to testify in another employee’s case before the appeals board, is guilty of a misdemeanor. 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. The appeals board is vested with full power, authority, and jurisdiction to try and determine finally all matters specified in this section subject only to judicial review, except that the appeals board shall have no jurisdiction to try and determine a misdemeanor charge. The appeals board may refer and any worker may complain of suspected violations of the criminal misdemeanor provisions of this section to the Division of Labor Standards Enforcement, or directly to the office of the public prosecutor.
I’ve highlighted subsection (3), which is the basic protection afforded. The penalties contained in that section are not exclusive when you file for public policy tort termination in the Superior Courts of California. Under that cause of action, all damages including loss of wages, emotional distress, etc., can be recovered. Many provisions of the California Labor Code, including section 132a, provide for penalties. In this case, up to $10,000 in penalties may be recovered by the employee who has suffered retaliation for filing a workman’s compensation claim.
Danz & Associates works hand-in-hand with over 100 workman’s compensation attorneys to assure that our employee-clients who have work related injury claims are given a full plate of legal protection, including resort to the civil courts. Now, a new threat is on the horizon for industrially-injured clients and that is the possible denial of a WCAB (Workman’s Compensation Appeals Board) hearing in favor of arbitration. While this is a brand new threat, we intend to do everything in our lobbying power through our membership in California Employment Lawyer’s Association (CELA) and the California Attorney Applicant Association (CAAA, of which we are the only known employment-attorney law firm who also belongs to that group and were proud participants in the Summer Convention in Palm Springs this week), to file amicus briefs in court and join in lobbying state legislators to prohibit this practice. We urge all of our attorney colleagues in the employment bar to join us.
As always, this blog is not intended to serve as legal advise in your case, but is educational in nature. Only an attorney familiar with the facts of your case can give legal advise to you. We practice throughout California, with our main office in Los Angeles and attorneys in our brick-and-mortar offices in Pasadena, San Diego, Irvine, Fresno, San Bernardino, San Francisco, Sacramento and Santa Rosa.