California Labor &
Employment Law Blog

Nov. 13 2009

132a Claimant Must Show Differential Treatment Based on Industrial Nature of Injury

Topics: Court Decisions

If you are a California employer who has ever had to take negative employment action against an industrially injured employee, then you are likely familiar with California Labor Code section 132a. Section 132a prohibits discrimination against an employee for filing a worker's compensation claim or for related activity. These claims are quite commonly filed by employees in conjunction with an underlying worker's compensation claim. Essentially, any time an employer takes adverse action against an industrially injured employee, the employer can expect a 132a claim to be filed. The employee cannot prevail on the claim, however, unless the employee proves that the adverse action was taken against him because of his industrial injury. Today, a California Court of Appeal further clarified that in order to prevail, the employee must establish that the employer treated the industrially injured employee differently than the employer would treat a non-industrially injured employee in the same circumstances.

In Gelson's Markets, Inc. v. WCAB, the employee sustained an industrial neck injury which resulted in the employee having surgery and being off work for over a year. Following surgery, the employee provided a doctor's note purporting to release the employee to return to work. However, the release was ambiguous, prompting the employer to follow up with the doctor for clarification. In the process of seeking clarification from the doctor, the doctor admitted that he did not believe the employee should return to work but should instead remain temporarily totally disabled. However, the employee wanted to return to work and wanted a release, so the doctor provided a release based on the employee's personal opinion that he could do his job. As a result of the doctor's admissions, the employer did not allow the employee to return to work. Litigation over the underlying worker's compensation claim proceeded, eventually resulting in an agreed medical evaluator opining that the employee could return to work. At that point, the employer allowed the employee to return to work (one and one-half years after the employee's original "release" from his treating doctor).

The employee filed a petition for discrimination under 132a, seeking lost wages for the time period his employer did not allow him to return to work. The WCAB granted the petition and awarded the employee lost wages, as well as a $10,000 statutory penalty. Specifically, the WCAB found that the employer's failure to return the employee to work following an unambiguous full-duty release, constituted discrimination against an industrially injured worker in violation of 132a.

The employer appealed and the appellate court agreed with the employer. Overturning the WCAB's award, the court held that the WCAB applied the wrong legal standard and erroneously concluded that the employee had been the victim of discrimination under 132a. The court explained that the proper standard to be used in evaluating a 132a claim is the standard articulated by the California Supreme Court in Dep't of Rehabilitation v. WCAB (Lauher),30 Cal.4th 1281(2003). Under Lauher,to prevail on a claim for discrimination under 132a, it is not enough for the employee to show he suffered some negativeconsequenceasa result of an industrial injury. Rather, the employee must show "discrimination"--i.e.differential treatment based on the industrial nature of the injury.

Applying the Lauher standard to the case before it, the court held that the employee had made no such showing. There were no facts suggesting that the employer would have treated an employee with a nonindustrial injury any differently in the circumstances. "[The employee] made no showing that [the employer] treated him disadvantageously because of the industrial nature of his injury, as compared to how [the employer] treated a nonindustrially injured employee." The court, therefore, concluded that the employee could not prevail on his claim for discrimination under 132a and annulled the WCAB award in the employee's favor.

The Gelson's Market case is a positive case for employers, making it harder for employees to prove discrimination under 132a and thereby lessening the risk associated with taking necessary adverse action against an industrially injured employee.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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