a-z indexroundtableArticles & Editorialsmarketplacemeet the publisherscontactsearch
home
  A-Z Index
A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z

DISCRIMINATION UNDER LABOR CODE §132a

Labor Code §132a provides: “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…”

Time to file: The worker may bring a 132a claim “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.” See Labor Code §132a(4).

In the leading case of Judson Steel Corp. v. WCAB (1978) 22 Cal.3d 658, the Supreme Court addressed the issue whether an employer who terminates an employee's seniority rights, and, ultimately, his employment, because of the employee's absence from his job as the result of an industrial injury, has engaged in unlawful discrimination within the meaning of Labor Code section 132a. The Court, relying on the public policy “opposing all discrimination against workers based solely on their having been injured in the course of employment,” held “The policy of protection which the workers' compensation laws declare can only be effectuated if an employer may not discharge an employee because of the employee's absence from his job as the consequence of an injury sustained in the course and scope of employment.”

In Smith v. WCAB (1984)152 Cal.App.3d 1104 the Court of Appeals noted that “Neither the Legislature nor the courts have fashioned a clear rule for distinguishing those forms of discrimination which are actionable under section 132a and those forms which are not.” Opining that “As can be inferred from Judson Steel, supra (cf. 22 Cal.3d at pp. 662-665), the only reasonable procedure for implementing such a rule is to make it the claimant's burden to show the detriment, the action, and its cause, and the employer's burden to prove an affirmative defense of business realities,” the Court sent the case back to the WCAB to apply this standard.

The Supreme Court in Dept. of Rehab. v. WCAB (Lauher) (2003) 30 Cal.4th 1281 noted:

“An employer thus does not necessarily engage in “discrimination” prohibited by section 132a merely because it requires an employee to shoulder some of the disadvantages of his industrial injury. By prohibiting “discrimination” in section 132a, we assume the Legislature meant to prohibit treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.”

The Court then determined that there was no discrimination under Labor Code §132a:

“Because Lauher does not allege that other employees are permitted to be away from their workplace for medical care yet need not use their sick leave if they wish to be paid their full salaries, we conclude Lauher fails to demonstrate he was the victim of discrimination within the meaning of section 132a. To hold otherwise would elevate those who had suffered industrial injuries to a point where they enjoyed rights superior to those of their coworkers. Nothing in the history or meaning of section 132as antidiscrimination rule supports such an interpretation.”

Thus, in addition to meeting the Judson Steel and Smith tests noted above, the worker alleging discrimination must establish that “his employer singled him out for disadvantageous treatment because of the industrial nature of his injury.” Proving differential treatment to establish a cause of actiion places a heavy burden on the worker, who may not have access to information in the possession of or under the control of the employer. Given the $250 cost allowance, this may not be doable.

Despite the Lauher result, Labor Code §3202 applies and each case turns on its own facts. The injured worker considering a 132a claim should determine whether the employer had a policy in place (or a collective bargaining agreement) that was applied in a neutral way to all employees, whether having industrial injuries or not.

Other areas of discrimination, such as terminating health coverage while the injured worker is on temporary disability, may be preempted by ERISA. See WCAB en banc decision, Navarro v. A&A Farming.

City of Moorpark v. Superior Ct. (Dillon) (1998) 18 Cal.4th 1143: “[T]he existence of a workers' compensation remedy does not by itself establish that the remedy is exclusive. Rather, the scope of workers' compensation exclusivity depends on the terms of the exclusive remedy provisions. Section 132a does not itself contain an exclusive remedy clause, and…the general exclusive remedy provisions of the workers' compensation law expressly do not apply to section 132a…[W]e hold that section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies.”

See, too, Discrimination and ADA-FEHA

Label Item Links Comments
Labor Code Labor Code §132a

Time to file 132a petition: “these proceedings may not be commenced more than one year from the discriminatory act or date of termination of the employee.”

LC §132a  
Regulations/Rules "Any person seeking to initiate proceedings under Labor Code Section 132a other than prosecution for misdemeanor must file a petition therefor setting forth specifically and in detail the nature of each violation alleged and facts relied on to show the same, and the relief sought. Each alleged violation must be separately pleaded so that the adverse party or parties and the Workers' Compensation Appeals Board may be fully advised of the specific basis upon which the charge is founded." 8 CCR §10447  
Cases See above  
Forms DWC's template. Note Board Rule 10447 above. Form  
Websites  
Practice Tips Before bringing a 132a petition and expending time on it, consider the Lauher decision and its progeny. Were there policies (preferably written) or a collective bargaining agreement that were applied equally to all workers? If so, the 132a may be worthless.

While clients may be sure that the reason for being treated a certain way or terminated was because of their work injury claim, that is not enough. There are very rarely documents proving this. Fellow employees still working there will probably have memory lapses when called to testify. Explain to client that alot more is needed to establish a punitive remedy such as a 132a. Also, just because something happened after something else does not prove causation: see Logical Fallacies

Also remember ERISA preemption, if plan benefits are involved.

Consider whether there is employment discrimination under FEHA or some other civil cause of action. Refer to an employment law specialist if necessary.

Be cautious about Compromise and Release documents: you may inadvertently be settling a FEHA claim or a wrongful termination civil suit.

Protect yourself from malpractice claims by sending client a letter declining to file or prosecute a 132a petition if the issue arises within the statute of limitations period.

 
Articles
The Right to Discovery vs. Privacy and Privilege 132a & discovery  
Magazine Articles  
Roundtable  
Miscellaneous    
 

A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z