It is the declared policy of California that there should not be discrimination against workers who are injured in the course and scope of their employment. Therefore, any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the employee has filed or made known his or her intention to file a workers’ compensation claim, is guilty of a misdemeanor, and the employee may seek extra forms of compensation from the employer.
Important Note: The employer’s workers’ compensation insurance does not cover any part of a 132a claim. The employer is therefore responsible for any increased damage award. The employer is also responsible for its own defense and should consult an attorney.
Damages Available
1. Employee’s workers’ compensation award may be increased by 50 percent, up to $10,000, plus additional damages listed below (See also WARNING below).
2. Costs and expenses of up to $250.
3. In addition to the above, employee may be entitled to reinstatement and reimbursement for lost wages and benefits (could be substantial).
4. Misdemeanor offense is punishable by imprisonment in the county jail for up to six months or by a fine of $1,000 or both.
Ways to Avoid
1. DO NOT terminate an employee who has filed a workers’ compensation claim or who is off work on workers’ compensation leave.
2. DO NOT demote, reduce salary, or engage in any other conduct that could be viewed as detrimental to the employee because of, or as a result of, the industrial injury.
Warning
In the decision of City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 the California State Supreme Court ruled that an employee who was terminated because of an industrial injury is not limited to a Workers’ Compensation claim, but may contemporaneously seek the much greater remedies available under the Fair Employment and Housing Act. Consequently, instead of the limited damages available in the Workers Compensation system, under 132a employers are now also exposed to claims for injunctive relief, full compensatory damages, punitive damages and attorney fees in civil court (possible multi-million dollar award).
William L. Porter is a principal in Porter Law Group, Inc. in Sacramento, California.
He can be reached at (916) 381-7868.
