California law protects disabled employees from different types of retaliation and discrimination. This article explores two of the most common forms of protection under:

• California Labor Code Section 132a
• Fair Employment and Housing Act, California Government Code Section 12940, et seq.

Labor Code 132a

When an employee who suffers an adverse employment action (wrongful termination, employer demotion, discriminatory act, constructive discharge, transfer, etc.) after a workplace injury, worker’s compensation counsel often file a California Labor Code 132a claim, alleging that the adverse employment action was a result of the employee bringing a worker’s compensation action.

 Under Labor Code 132a, employers are legally prohibited from taking adverse action against a worker who files or intends to file workers’ compensation claims. While Labor Code 132a may appear straightforward on the surface, it is a complicated, nuanced regulation.

 Labor Code § 132a states, in pertinent part:

 “It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.

 (1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee’s compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer…”

 Simply put: a company cannot discriminate, discharge, or otherwise retaliate against an employee who is seeking or who filed a workers comp claim. The statute is designed to protect employees who properly use the workers compensation system. To do so is a violation of state law and will expose an employer to money damages. Furthermore, employers do not have to follow through on these actions; the mere threat of discrimination may still be considered unlawful.

What are Adverse Actions?

Employer's actions that may be considered adverse employment actions under Labor Code 132a include, but are not limited to:

• Terminating an employee
• Reducing an employee's hours
• Reducing an employee's hourly pay
• Changing an employee's work duties
• Denying an employee benefits
• Encouraging other employees to punish or retaliate against the employee
• Failing to promote a deserving employee due to their injury

Example of a Potential California Labor Code 132a Claim

For example, here's a timeline of a valid Labor Code 132a claim:

An employee filed for workers' compensation, received a rating, award or settlement in a compensation claim, or made known their intentions to file a claim with the workers compensation appeals board. Then, the employer took some sort of adverse action against the employee because of the workers' compensation claim, where the employee was singled out for disadvantageous treatment due to the injury or claim being filed. This specific set of circumstances would warrant the employee’s Labor Code 132a claim being filed in their workers comp case.

 Elements of a Labor Code 132a Claim

There are several elements required to prove the employer’s liability under Labor Code 132a, each complicating the merits of a 132(a) claim:

• Knowledge: Employers can defend Labor Code 132a claims on the grounds that they had no knowledge an employee filed for benefits or intended to file for benefits. An employer cannot violate Labor Code 132a without knowledge.
• Discriminatory/Retaliatory Act: To violate Labor Code § 132a, an employer must have taken discriminatory/retaliatory action against the employee or threaten to take such action to discourage the filing of a claim. Lack of a discriminatory or retaliatory act is a defense.
• Causal Connection: Filing for workers’ compensation benefits is not a protection against adverse employment actions. Employers are only in violation of Labor Code § 132a if they take negative action against an employee because they sought benefits. Employers can defend claims on the grounds that they had good cause for discharging or otherwise taking action against an employee that was wholly unrelated to workers’ compensation.

Recovery on a Labor Code 132a claim is capped at $10,000.

FEHA and Labor Code 132a

It is often more lucrative and in the best interest of the injured worker to file a disability harassment or discrimination lawsuit under the Fair Employment and Housing Act (“FEHA”). FEHA provides remedies to eliminate discrimination, providing broad protections for workers of public and private employers, labor organizations and employment agencies. FEHA protects not just employees, but also an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.

California Fair Employment and Housing Act Government Code § 12940 states, in pertinent part:

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment…”

To make a claim under the FEHA, you have to be able to demonstrate that there is a causal relationship between an unlawfully motivated employment decision (i.e., discrimination) or workplace policy and the harm that you have suffered.

Elements for FEHA Retaliation Claim

A plaintiff claiming retaliation under the FEHA, must prove each of the following:

• That the employee engaged in a protected activity;
• That the company took an adverse employment action against them;
• That the protected activity was a substantial motivating reason for the company’s decision to take adverse employment action against the employee;
• That the employee was harmed; and
• That the company’s conduct was a substantial factor in causing the employee’s harm.

 Practical Application

Employees are often worried about the consequences of pursuing a discrimination claim against their employer. However, it’s important to understand that employers may not terminate or take adverse employment actions against their employees simply because the employee opposed the employer’s discriminatory policies. Like California Labor Code 132a, Government Code § 12940 enables an employee who has suffered discrimination the right to file a complaint, testify, or assist in any proceeding in a discrimination claim against their employer, and the employer may not retaliate against them for doing so.

“For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Government Code 12940 (h).

Potential Recovery is Far Greater under FEHA for an Injured Employee

A side-by-side comparison of the remedies available in a Labor Code 132a claim and those available under the FEHA provides clear incentive for injured employees to pursue FEHA claims, when available.

A successful Labor Code 132a claim can result in a misdemeanor for the employer, an increase in workers’ compensation benefits, limited to $10,000, reinstatement, and lost wages.

By contrast, in a FEHA claim, a prevailing employee can receive lost earnings, unlimited compensatory damages, punitive damages, injunctive orders, and attorneys' fees and costs. Notably, in a case where an employee brings both claims, there is no double recovery.

Labor Code 132a claims are hard to prove and generally have a low value – damages are capped at $10,000. Whereas for FEHA disability claims, especially where the injured worker is terminated, injured employees are entitled to recover damages for past and future lost wages, emotional distress and attorney fees and costs. Recovery for FEHA claims can often exceed $100,000.

 Our office specializes in bringing this type of lawsuit and working alongside worker’s compensation counsel to maximize the financial recovery for injured workers. If you, or anyone you know, has suffered an adverse employment action as a result of being injured at work, please contact the attorneys at Freeburg & Granieri, APC to discuss your options. Our attorneys are based in Los Angeles County, but serve all of California including - San Bernardino County, Riverside County, San Diego County, and San Luis Obispo County.