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Discrimination within the Workers’ Compensation System. Violations of Labor Code Section 132a.
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Violations of Labor Code Section 132a • Labor Code Section 132a – provides for increased compensation, criminal liability and further sanctions including reimbursement for lost wages and reinstatement against and employer or carrier for discrimination exercised against an employee for filing a claim or making known his or her intention to file a claim for workers’ compensation benefits, or against a prospective witness in workers’ compensation cases.
Violations of Labor Code Section 132a • “It is the declared policy of this state that there should not be a discrimination against workers who are injured in the course and scope of their employment . . ..” • Discrimination in violation of Labor Code Section 132a are misdemeanors. The WCAB however does not have jurisdiction to try and determine the misdemeanor charge. Rather, the WCAB or “any worker” can make a referral to Division of Labor Standards Enforcement or the District Attorney/Public Prosecutor.
B. Sanctions and penalties for violation by employer/insurer at WCAB level. • Employee’s compensation increase by one-half up to $10,000.00 and costs and expenses not to exceed $250.00. • Reinstatement upon a finding of employer discrimination employee may be entitled to reinstatement to his old job. • The Board has broad equitable powers respecting the sanction of reinstatement. For example in Arco v. WCAB, 68 CCC 653 (2003) a probationary employee who is found to be unlawfully terminated in violation of Labor Code Section 132a was ordered to be reinstated to a full-time position when defendants did not show that the employee should be returned to work as a probationary employee and the evidence suggested that the applicant would have successfully completed the probationary period but for the unlawful termination.
B. Sanctions and penalties for violation by employer/insurer at WCAB level (cont’d) • Employer to reimburse lost wages and work benefits when discrimination is found. • Employee is required to mitigate damages and failure to mitigate may preclude an award of lost wages. An employee generally may not recover lost wages for any period in which the employee is not ready, willing and able to perform the duties of the position. Lost wages may not be recovered when the employee refuses to accept or quits other employment or fails to diligently search for work. (If medically temporarily totally disabled then employee cannot maintain claim for lost wages). Note:One may not simultaneously possess and consume their cake.
C. Examples of Labor Code 132a Violations. • Specific acts described as discrimination under Labor Code Section 132a are discharging, threatening to discharge or in any manner discriminating against 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 settle.
C. Examples of Labor Code 132a Violations. • Terminating and employee because the employer believes that the claim is fraudulent and bogus. • Making an example of the applicant that is demeaning or meant to embarrass or humiliate the employee in front of others. • Demotion or other adverse action without showing of “business necessity and discriminating against co-worker because he/she testified on behalf of another injured employee.” See County of Sacramento v. WCAB (Christian) 58 CCC 351 (1993).
C. Examples of Labor Code 132a Violations (cont’d) • Discrimination for receiving C&R. Employer may not discriminate against an employee because the employee received a workers’ compensation lump sum settlement. Roseville Community Hospital v. WCAB (Eubanks) 56 CCC 289 (1991). Employee terminated expressly for the reasons of having received a WC settlement. • Others include receiving a rating, loss of seniority rights, demotion, failure to correct employment records, discontinuance of previously-agreed severance pay in retaliation for filing claim form . . . and many many more.
D. Defenses. The biggest defense is one of justification “i.e., realties of doing business/business necessities”.
D. Defenses. • Fear of re-injury business necessity will be sustained where employer can establish that there is a reasonable fear that the employee will re-injure him or herself if he continues in the employment. Western Electric v. WCAB (Smith) 99 Cal. App. 3rd 629 (1979). The court held that employer’s refusal to rehire was based upon medical evidence that return to job would cause subjective complaints with repetitive use of hands and that such repetitive use should be restricted. • Evidence relied on to terminate must be “fresh”, i.e., employer cannot rely upon a stale medical report in assessing work restrictions. Similarly, an employer may not rely on medical reports outlining work restrictions generated nine months post‑termination to justify actions. Note: The crystal ball defense will not be followed.
D. Defenses (cont’d) • Business realities defense not necessarily limited to financial concerns. In Kincaid v. WCAB 67 CCC 1211 (2002) the Board held that defendant Arch Dioses of Los Angeles had met its burden of establishing a business realities defense. The applicant was a school secretary on temporary disability for several months due to industrial injuries and a neck surgery. Applicant discussed with the school principal a need for additional leave after returning to work to care for her dying mother for an unspecified period. The defendant’s leave policy provided for a four-month maximum leave for medical reasons within any 12-month period. Defendants provided testimony that they had been unable to fill the needs of the school with volunteer students, parents and temporary workers. The WCJ in that case noted that the employer had demonstrated the business reality of meeting the needs of the high school community apart from financial concerns.
E. Conclusions • Document, Document, Document!!!! • Remember to be smart in your communications. Almost anything in writing is discoverable. If you wouldn’t feel comfortable letting your Grandma read it, don’t write it. • General rule: treat Iws just like you would regular workers in terms of personnel actions.
Facts • Employee sustained a cumulative trauma on July 30, 2004 to his neck a cervical fusion was performed on March 1, 2005. On June 27, 2005 he was released to return to work with no restrictions by his treating physician. The employer refused to return him to work but wrote to the doctor requesting further clarification as the full release was in conflict with his earlier release giving the applicant restrictions. On July 18, 2005 the doctor responded that the applicant had stated he felt capable of returning to work and was therefore released to return to work full duty. The employer again requested further clarification from the doctor but did not allow applicant to return to work. The parties selected an AME. On July 19, 2006 he reported that the applicant could return to work without restrictions. In a subsequent deposition on December 1, 2006 the AME maintained his position that the applicant could return to work without restrictions. January 6, 2007 the applicant returned to work. • Applicant filed a timely claim for violation of Labor Code §132a. Additionally, applicant/employee has filed a civil claim alleging violations of FEHA disability discrimination and failure to engage in or act in good faith in the interactive process.
Issues • 1)did the employer violate Labor Code §132a by refusing to bring the employee back to work on June 27, 2005 when he was first released to return to work with no restrictions by his treating physician? • 2) Does the fact that the doctor issued a report 45 days prior to the full duty release of June 27, 2005 providing work restrictions of no lifting above ten pounds, no work at or above shoulder level, no repetitive keyboarding/cash register work, must take breaks as needed and no prolonged upward or downward gazing change the analysis? • 3) Next question did the employer violate Labor Code §132a, or other statutes and acts when they did not return the employee on July 18, 2005? What about on July 19, 2006 when they received the Agreed Medical Evaluator’s Report? • 4)what other issues are presented? What would have been the “best practice” in this situation?
