Labor Code §132a prohibits an employer from discharging or otherwise discriminating against an employee because the employee has filed (or made known his/her intention to file) a workers’ compensation claim. An applicant/employee can allege a violation of §132a by filing a petition with the Workers’ Compensation Appeals Board (WCAB). If there is a violation of §132a the employee is entitled to an increase in any compensation award by one-half (up to a maximum of $10,000) and costs of up to $250 in addition to reinstatement and reimbursement of lost wages and benefits.
Although it is the declared policy of the State of California not to discriminate against an injured worker, the California Court of Appeal in Dutra v. Mercy Medical Center Mt. Shasta (2012) 250 Cal.App.4th 750 concluded that the applicant/employee can only bring his/her §132a claim under the jurisdiction of the WCAB and cannot bring a civil tort action alleging a violation of public policy based on §132a.
However, in City of Moorpark v. Superior Court (1998) 18 Cal. 4th 1143, the California Supreme Court had previously held that §132a does not totally provide an exclusive remedy for the applicant/employee as §132a does not preclude the employee from filing a discrimination action under the Fair Employment and Housing Act (FEHA) or other common law claims for wrongful discharge.
A recent published case before the California Court of Appeal, Prue v. Brady Company (November 17, 2015) D066404 ___Cal.App.4th __, has broad applicability to employers with regard to work related injuries, §132a and FEHA claims and allegations of violation of the public policy based on asserted wrongful termination following a work injury. In Prue the employee alleged that he had suffered a work-related injury and was later terminated because of his disability. He did not file a §132a claim before the WCAB. More than one year after his termination he filed a civil action claiming that the termination was in violation of public policy.
Even though the Complaint specifically referenced Labor Code §132a, the court held that the employee had sufficiently alleged a common law tort claim of disability discrimination under FEHA and, therefore, his lawsuit for wrongful termination in violation of public policy could proceed on that basis. The court found that the two-year statute of limitations for a common law tort action applied rather than the one-year statute for FEHA claims and claims under Labor Code §132a so the plaintiff’s claim was timely. The court also denied the employer’s assertion that §132a was the employee’s exclusive remedy and allowed the common law tort cause of action for wrongful termination in violation of public policy to proceed.
What this means to you:
In addition to filing a §132a claim with the WCAB the employee has other legal avenues to seek redress against the employer if the employer takes an adverse action (usually termination) against the employee and the employee believes the action was based on his/her work-related injury and subsequent disability.
Additionally, the statute of limitations is longer for such a tort claim (2 years) as compared to the one-year limitation under §132a or FEHA. It should also be noted that this case was brought by a firm that typically represents applicants in WCAB proceedings and that many such firms are now filing civil cases alleging various violations of employment laws and/or public policy.
Employers must be vigilant in making sure that they do not take adverse employment actions against employees with work related injuries and/or disabilities.
For further information or assistance please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or email@example.com.