Discrimination in the Face of Worker's Compensation Claims

The California Workers’ Compensation Act provides for no-fault remedies to injured workers, on the theory that eliminating the proof requirements attendant on ordinary injury claims will save the parties time, money, and headaches. However, the Workers’ Compensation Appeals Board (“WCAB”) has jurisdiction over two other types of cases which do not fit the “no-fault” mold on which the workers’ compensation system was established: liability for discrimination associated with workers’ comp claims, and serious and willful violation of the workers’ comp laws. This article outlines what employers may expect as respondents in a Labor Code § 132a discrimination cases.

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.

Workers' Compensation Discrimination under Labor Code § 132a

When an employee files for workers' compensation benefits, they may also file a companion case under Labor Code section 132a. Called "workers' compensation discrimination," or 132a case, these are separate matters from the discrimination case under the law.

Under Labor Code § 132a, the employee must show that he or she was (a) had a negative employment action taken against him or her because of the industrial injury, and that (b) he or she was singled out for such treatment. This is often shown by the closeness in time of the industrial injury and the termination or demotion. Unlike the underlying workers' comp case, this is not an open-and-shut matter where all that must be determined is the dollar value.

Because of this, your workers' compensation carrier is probably not your best advocate in solving the 132a matter. Besides, workers' comp insurance rarely covers discrimination cases, since they are considered "intentional" or "willful." Therefore, to resolve the case, find an attorney experienced in worker's compensation discrimination cases -- who can hone in on the records and witnesses to make the best case either before or at the hearing, and can develop defenses with an eye toward speedy resolution.

Cases before the Workers' Compensation Appeals Board ("WCAB") are often party-driven, meaning the attorneys set the pace and schedule for evidence-gathering and hearings. Because workers' compensation cases often take a long time to resolve, employees often leave their discrimination matters on the back burner. But employees can be entitled to back-pay, exposing employers to a possible unwelcome surprise once the employee becomes "permanent and stationary."

Cook Brown has the expertise to know when to pursue 132a cases, and when to let them sit.