Court of Appeal Determines That Failure To Rehire Former Employee Is Not A Violation of Labor Code §132a

In the matter of Allen v. AT&T, a case defended in GMK’s Sacramento office by Angela Trueblood and Ryan Frazier, the Court of Appeal has affirmed a WCAB decision denying the applicant a remedy under Labor Code §132a.

Ms. Allen was terminated on April 20, 2007 after she missed time from work; i.e. excessive absences. At that time her physicians’ reports indicated that the applicant’s absences had not been due to industrial causation. After her termination the PQME opined that the applicant’s disability periods had generally been due to her industrial injury. Ms. Allen filed a §132a petition claiming a discriminatory termination. After a trial on the issue the WCJ found a §132a violation. The defendant filed a Petition for Reconsideration and the WCJ then vacated his opinion and issued a new decision holding that a §132a violation had not occurred per Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) (Lauher) 30 Cal.4th 1281, 1298. The applicant then filed a Petition for Reconsideration.

On September 24, 2011, the WCAB denied reconsideration. The applicant did not appeal that decision. The trial judge had also ruled that the disputed TTD periods had been industrial. On that basis the applicant requested reinstatement but her request was rejected by the employer and she was not reinstated.

The applicant then filed a second §132a petition. The trial judge decided that in order to sustain a valid §132a claim a current employment relationship must exist between the parties relying on the standard set in City of Anaheim v. Workers’ Comp. Appeals Bd. (1981) 124 Cal.App.3d 609. The judge noted that the applicant had also failed to present substantial evidence that the employer’s refusal to rehire her was motivated by the fact that the applicant had filed a workers’ compensation claim and/or a §132a claim. The applicant filed another Petition for Reconsideration that was denied and then a Petition for Writ of Review that was denied by the Court of Appeal.

What this means for you:

For a §132a petition to be successful, the conduct alleged to be in violation of the Labor Code must have occurred while the applicant was an employee. A failure to rehire an applicant after a valid termination is not a §132a violation. However, all employers should still be cautious about making personnel decisions that involve the termination of an employee because of potential employment law issues.

Jeanne Flaherty is GMK’s employment law specialist. She can be reached at our Woodland Hills office at (818) 755-0444 or by email at jflaherty@gmklaw.com.