A. Procedure Before the WCAB
Because of the reduced proof requirements in workers’ compensation benefits matters, procedure before the WCAB is designed to be “simple, informal, and expeditious.” (See http://tinyurl.com/CalWCAB, for published rules.) The WCAB “need not adhere to rules of pleading and practice binding ordinary courts. … This liberal way of proceeding, free of formalism, applies also to the manner in which parties are brought under the jurisdiction of the commission … although the constitutional requirements of due process must be observed.” (DeMartini v. Industrial Acc. Com. (1949) 90 Cal.App.2d 139.) As a result, for instance, employers’ dispositive motions, such as demurrers and motions for summary judgment, are rarely heard by WCAB judges.
The parties have nearly complete control over the proceedings. In order to advance litigation, one or more of the parties must file a “declaration of readiness to proceed” (“DOR”) on a status conference or mandatory settlement conference. (See http://tinyurl.com/CalWCAB-DOR.) Typical motion work will only be heard in the context of a status conference, and no formal hearings are set and no memorandum of points and authorities is required (though best practice is to file one). As the respondent in the section 132a cases, the employer may not receive all the filings served by the workers’ compensation counsel. As such, it may be shocking to realize that an innocuous looking “Notice of Hearing” from the WCAB on a “Status Conference” requires expensive legal research, and may get the whole matter (workers’ compensation, and 132a claims together) set for trial. Nevertheless, because of the inherent informality, there are few requirements for rigorous briefing. In fact, aggressive motion work has been criticized by the courts as contrary to the abandonment of formality and contention, in exchange for expediency. (See Brennfleck v. WCAB (1968) 265 Cal.App.2d 738.)
Hearings are likewise informal. Many WCAB judges set two hearing sessions per day (one at 8:30 am and one at 1:30 pm), with many cases for each session. These sessions are very much a cattle call, and simply finding the opposing counsel on the 132a claims may take time. During these hearings, the parties usually attempt informal resolution of the issues before approaching the judge. If the informal process fails to bear fruit, the parties get in line behind other litigants, and wait for the judge to call them. At the hearing, there is no guarantee that the judge has read any filed papers, or that he is familiar with the issues. As such, the judge may take time to read what was filed, or may do his own legal research during the hearing. Then, the judge may ask questions and suggest informal resolutions, or demand that the parties retry their negotiations based on his likely ruling. The judge may, thereafter, make a ruling on the spot, take the issues under advisement, continue the whole matter, or set trial on the issues.
Before the WCAB, mandatory settlement conferences are the prerequisite to trial. If the hearing was on a mandatory settlement conference and the parties did not resolve the case, the judge may set the matter for trial. Though the underlying workers’ compensation case is wholly distinct from the 132a case (see Morehouse v. WCAB (1984) 154 Cal. App. 3d 323), the judge may be unwilling to bifurcate the matters for trial. As such, 132a respondents should have all discovery completed before the underlying worker’s compensation case draws to resolution.
(Here's an interesting article about filing claims I found while researching this article.)
B. Strategy for 132a Litigants
Unlike cases in civil court, the informal procedures limit the interactions parties must have during the pendency of the lawsuit. As such, 132a applicants may fail to prosecute their discrimination claim for years while their claim for industrial injuries continues. Likewise, 132a respondents may not bother to actively defend the case until plaintiff shows that he or she is planning on an active prosecution. Though this strategy is counterintuitive to trial attorneys, it serves the useful function of keeping costs to a minimum for much of the case.
However, delay is likely counterproductive for applicants, since the burden they must show is quite high. Proof requirements on workers’ compensation claims are far different than for discrimination claims. During litigation on the former, applicants must show the nature and extent of a continuing injury. However, as to the latter, the facts surrounding the alleged discrimination generally occurred at some discrete moment in time, and are fixed. An aggressive approach will preserve evidence, even if applicants choose to try the case with the underlying workers’ compensation case (though possibly meritorious, a “failure to prosecute” argument must be backed by real prejudice for the Board to consider it).
B. Burden Shifting in 132a Discrimination Cases
As discussed, worker’s compensation claims do not require a showing of fault, and are in fact “no-fault” proceedings. On the other hand to prove 132a discrimination, applicants must show that the employer’s action caused them harm — or implicitly that the employer was at fault. Nevertheless, the relaxed procedures described above are regularly applied to discrimination cases. (See 2 Witkin, Summary 10th (2005) Work Comp, § 20, p. 571 (“Lab.C. 132a is quite different from other workers’ compensation remedies in that it addresses a breach of an employee’s civil rights and applies regardless of whether that breach causes a medical injury.”))
Similar to many other discrimination matters, the courts apply burden-shifting to establish discrimination under Labor Code section 132a. First, the applicant must establish a prima facie case of discrimination. (Department of Rehabilitation v. WCAB (2003) 30 Cal.4th 1281 (free link unavailable, bit of a summary available here).) Next, to avoid liability, the employer must show it had legitimate, non-discriminatory reasons for the employment action. Thereafter, plaintiff may produce evidence undermining the employer’s case, showing that the purported reason is pretext.
C. Applicant’s Case
Specifically, to make a prima facie showing of discrimination under section 132a, plaintiff must show (a) that he suffered a detrimental consequence as a result of suffering an industrial injury, and (b) that the claimant was singled out for disadvantageous treatment because of his injury. (See Department of Rehabilitation v. WCAB (2003) 30 Cal. 4th 1281.) This definition of the prima facie case looks very much like a case for discrimination in numerous other statutes. Plaintiff must show not only that he or she is part of the protected class, but also that there is a nexus between the protected class and the adverse employment action. However, plaintiff has the additional burden to show that he or she was “singled out” as a result of the injury.
That can be a very high burden for plaintiffs, especially where the employer is large and has numerous workers’ comp cases. The employer may prevail by showing only that it did not “single out” plaintiff for the alleged adverse treatment — that, for instance, the employer never terminated other injured workers or terminated workers in the employee’s position regardless of their injury status. Perhaps it is this burden which prompts applicants to let their cases idle in the Court, settling only as part of the underlying workers’ comp case.
D. Defenses
The employer’s primary defenses are to undermine the plaintiff’s case. First, applicant cannot prevail if he or she cannot show either the required nexus or that plaintiff was singled out. Second, the employer’s legitimate, nondiscriminatory purpose for the termination acts as a complete defense unless the applicant can show that reason is pretext. That legitimate reason, of course, cannot be related to the injury or its symptoms; otherwise the employer’s actions may be considered discriminatory.
If the employer cannot undermine the prima facie case, it can defend on several grounds. For example, the employer enjoys a presumption of non-discrimination where it terminated an employee for a demonstrated failure to meet quota, despite workers’ compensation claims. (Robinson v. WCAB (1986) 51 Cal.Comp.Cas. 559 (free link unavailable).)
Similarly, defendant’s may also assert the defense of “good cause” defense if the employee was incapable of the work for which he was hired. (Colony at Victorville v. WCAB (1994) 59 Cal.Comp.Cod. 545 (“an employer is entitled to take whatever action he pleases against an employee who cannot do his job”) (free link unavailable).) As one of the lead cases on 132a shows, “Section 132a does not compel an employer to ignore the realities of doing business by ‘reemploying’ unqualified employees.” (Judson Steel v. WCAB (1978) 22 Cal.3d 658.)
If direct defenses do not work, the employer may attempt to undermine the recovery. Under section 132a, an employee “may not recover lost wages and benefits for any period in which he or she was not ready, willing and able to perform the duties of his or her position.” (Dyer v. WCAB (1994) 22 Cal.App.4th 1376.)
E. Conclusion
The litigation of discrimination cases under Labor Code section 132a is fraught with pitfalls for both employer and employee. The employee has a steep hill to climb, with no task-master cracking the whip toward prosecution, leaving many such cases unprosecuted for years. The employer is saddled with informal and possibly prejudicial procedures designed for the no-fault workers’ compensation case upon which the 132a matter is based. As such, plaintiffs should analyze the utility and viability of such cases, and avoid adding a discrimination claim where one is unmerited. Defendants should remain vigilant in the case, conduct discovery if appropriate, but prepare for a long wait should the plaintiff fail to prosecute the 132a portion of the case.
B. Strategy for 132a Litigants
Unlike cases in civil court, the informal procedures limit the interactions parties must have during the pendency of the lawsuit. As such, 132a applicants may fail to prosecute their discrimination claim for years while their claim for industrial injuries continues. Likewise, 132a respondents may not bother to actively defend the case until plaintiff shows that he or she is planning on an active prosecution. Though this strategy is counterintuitive to trial attorneys, it serves the useful function of keeping costs to a minimum for much of the case.
However, delay is likely counterproductive for applicants, since the burden they must show is quite high. Proof requirements on workers’ compensation claims are far different than for discrimination claims. During litigation on the former, applicants must show the nature and extent of a continuing injury. However, as to the latter, the facts surrounding the alleged discrimination generally occurred at some discrete moment in time, and are fixed. An aggressive approach will preserve evidence, even if applicants choose to try the case with the underlying workers’ compensation case (though possibly meritorious, a “failure to prosecute” argument must be backed by real prejudice for the Board to consider it).
B. Burden Shifting in 132a Discrimination Cases
As discussed, worker’s compensation claims do not require a showing of fault, and are in fact “no-fault” proceedings. On the other hand to prove 132a discrimination, applicants must show that the employer’s action caused them harm — or implicitly that the employer was at fault. Nevertheless, the relaxed procedures described above are regularly applied to discrimination cases. (See 2 Witkin, Summary 10th (2005) Work Comp, § 20, p. 571 (“Lab.C. 132a is quite different from other workers’ compensation remedies in that it addresses a breach of an employee’s civil rights and applies regardless of whether that breach causes a medical injury.”))
Similar to many other discrimination matters, the courts apply burden-shifting to establish discrimination under Labor Code section 132a. First, the applicant must establish a prima facie case of discrimination. (Department of Rehabilitation v. WCAB (2003) 30 Cal.4th 1281 (free link unavailable, bit of a summary available here).) Next, to avoid liability, the employer must show it had legitimate, non-discriminatory reasons for the employment action. Thereafter, plaintiff may produce evidence undermining the employer’s case, showing that the purported reason is pretext.
C. Applicant’s Case
Specifically, to make a prima facie showing of discrimination under section 132a, plaintiff must show (a) that he suffered a detrimental consequence as a result of suffering an industrial injury, and (b) that the claimant was singled out for disadvantageous treatment because of his injury. (See Department of Rehabilitation v. WCAB (2003) 30 Cal. 4th 1281.) This definition of the prima facie case looks very much like a case for discrimination in numerous other statutes. Plaintiff must show not only that he or she is part of the protected class, but also that there is a nexus between the protected class and the adverse employment action. However, plaintiff has the additional burden to show that he or she was “singled out” as a result of the injury.
That can be a very high burden for plaintiffs, especially where the employer is large and has numerous workers’ comp cases. The employer may prevail by showing only that it did not “single out” plaintiff for the alleged adverse treatment — that, for instance, the employer never terminated other injured workers or terminated workers in the employee’s position regardless of their injury status. Perhaps it is this burden which prompts applicants to let their cases idle in the Court, settling only as part of the underlying workers’ comp case.
D. Defenses
The employer’s primary defenses are to undermine the plaintiff’s case. First, applicant cannot prevail if he or she cannot show either the required nexus or that plaintiff was singled out. Second, the employer’s legitimate, nondiscriminatory purpose for the termination acts as a complete defense unless the applicant can show that reason is pretext. That legitimate reason, of course, cannot be related to the injury or its symptoms; otherwise the employer’s actions may be considered discriminatory.
If the employer cannot undermine the prima facie case, it can defend on several grounds. For example, the employer enjoys a presumption of non-discrimination where it terminated an employee for a demonstrated failure to meet quota, despite workers’ compensation claims. (Robinson v. WCAB (1986) 51 Cal.Comp.Cas. 559 (free link unavailable).)
Similarly, defendant’s may also assert the defense of “good cause” defense if the employee was incapable of the work for which he was hired. (Colony at Victorville v. WCAB (1994) 59 Cal.Comp.Cod. 545 (“an employer is entitled to take whatever action he pleases against an employee who cannot do his job”) (free link unavailable).) As one of the lead cases on 132a shows, “Section 132a does not compel an employer to ignore the realities of doing business by ‘reemploying’ unqualified employees.” (Judson Steel v. WCAB (1978) 22 Cal.3d 658.)
If direct defenses do not work, the employer may attempt to undermine the recovery. Under section 132a, an employee “may not recover lost wages and benefits for any period in which he or she was not ready, willing and able to perform the duties of his or her position.” (Dyer v. WCAB (1994) 22 Cal.App.4th 1376.)
E. Conclusion
The litigation of discrimination cases under Labor Code section 132a is fraught with pitfalls for both employer and employee. The employee has a steep hill to climb, with no task-master cracking the whip toward prosecution, leaving many such cases unprosecuted for years. The employer is saddled with informal and possibly prejudicial procedures designed for the no-fault workers’ compensation case upon which the 132a matter is based. As such, plaintiffs should analyze the utility and viability of such cases, and avoid adding a discrimination claim where one is unmerited. Defendants should remain vigilant in the case, conduct discovery if appropriate, but prepare for a long wait should the plaintiff fail to prosecute the 132a portion of the case.
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