Labor Code §132a provides:

Labor Code §132a provides that an employer who fires, threatens to fire, 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 worker's compensation 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 ($10,000.00) and costs not to exceed two hundred fifty dollars ($250.00). (emphasis added)

The section also provides that an employee who successful proves his or her discrimination claim is entitled to reinstatement and reimbursement of lost wages and work benefits caused by the employer.

Making a Claim for Penalties Pursuant to Labor Code Section 132a

The employee has the burden of establishing, by a preponderance of the evidence, that he or she has lost wages or benefits as a result of the discriminatory acts of the employer (Dyer v. WCAB (1994) 22 Cal.App.4th 1376, 1386 and Western Electric Co. v. WCAB (1979) 99 Cal.App.3d 629, 640). The burden then shifts to the employer to establish an affirmative defense to its actions. (Barns v. WCAB (1989) 216 Cal. App. 3d 524, 531). The elements an employee must establish are as follows:

1. Employee filed or made known an intent to file a worker's compensation claim.

   The right to recovery for discrimination under Labor Code section 132a is limited employees who have made, or made known their intent to make, a worker's compensation claim. In either case, the employee must show that the employer was aware of the employee's pending or potential claim at the time of the alleged discriminatory activity took place.

   There is no requirement that the employee's claim be accepted, that the employee ultimately recovered benefits pursuant to the claim or even that the employee proves that an injury actually occurred. The trigger for protection under 132a is the claim of injury.

2. Employer discriminated against the employee.

   While the language of the section suggests that the employer's conduct must be in specific retaliation for a claim filed at the Workers' Compensation Appeals Board, the courts have interpreted the section liberally to achieve the legislative goal of preventing discrimination against workers injured on the job. (Judson Steel Corp., v. WCAB (Maese) (1978) 22 Cal.3d 658, 666-669)

   The dictionary defines discrimination as the process by which two stimuli differing in some aspect are responded to differently. In the context of section 132a, the California Supreme Court has defined discrimination as "treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim." (Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal. 4th 1281, 1300) This definition actually gives rise to two issues. One, was the injured worker treated differently than his non-injured counterparts? And, two, was the differential treatment a result of or caused by the worker's injury claim?

   No clear test of causation has been accepted by the courts. One test the WCAB judges use in reviewing discrimination cases is to ask the following question: "Would the same action have been taken against this employee had there been no injury?". If the answer is "yes," then the action probably does not qualify as discrimination under Labor Code §132a. If the answer is "no", it almost always is.

   If this analysis appears too simple, that is because it is. The test addresses what would have occurred but for the injury. Standing alone, it fails to address the complex situations and decisions presented to both a worker and an employer while dealing with an occupational injury. Some areas where employers run into trouble include discharging an employee for attendance violations that are related to the occupational injury, denying pension credits or other benefits during extending leave resulting from the occupational injury or refusing to reinstate or accommodate a permanently disabled employee.

   An industrial injury does no insulate an employee from discipline for violations of workplace policies. Among employment actions which courts have found do not violate §132a are discharges for violation of the employer's rules, separate and apart from any injury the employee may have suffered. In Jordan v. WCAB (1985) 175 Cal. App. 3d 162, at 165 -166, 222 Cal. Rprt. 554, the firing of an employee was upheld when the employer was able to show that the firing was for misconduct unrelated to an industrial injury.

   However, before taking action, an employer should take a second look at the nature of the violation in relation to the employee's claim of injury. Even if the policy was consistently applied to the employee, the employee may successfully argue that the violation was directly related to an occupational injury. One trap for unwary employers has been the application of seemingly non-discriminatory rules regarding retirement pension credits or providing that any employee on inactive status for a set period of time is no longer eligible for medical and other benefits. The WCAB has held that if the inactive status was the result of an industrial injury or illness, then the application of the employer's rules is discrimination under §132a.

   Discrimination has also been found in a refusal to reinstate a permanently disabled employee by accommodating the disability. In addition, the §132a liability in this situation can overlap both California's Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA), creating multiple liability headaches. Discrimination has also been found when the employee loses seniority or is demoted due to time off work as a result of industrial injury.

   In City of Moorpark v. Superior Court (1998) 18 Cal. 4th 1143, 63 CCC 944, the Supreme Court ruled that section 132a is not an exclusive remedy. When an employee attempts to return to work with an impairment and is rejected by the employer, the rejection can raise discrimination claims under Labor Code section 132a, the Americans With Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA), and in common law for wrongful termination based on violation of public policy.

   In that case, an administrative secretary suffered an industrial knee injury. After being declared QIW and completing a course of vocational rehabilitation, she asked for her old job back with accommodation. The employer denied her request. She filed a 132a claim. She also filed a civil lawsuit alleging FEHA discrimination and common law wrongful termination. The Supreme Court found that her remedies under the three separate laws overlap and therefore she was allowed to proceed.

   It is generally held that the employer has not discriminated against the injured worker when the termination or other action was merely close in time to the occurrence of an industrial injury, and resulted instead from a legitimate business necessity, such as financial downturns, changes in business strategy or "downsizing." Employers's defense of "business necessity" is discussed more fully below.

3. Employer's act was to the detriment of employee.

   It is critical to bear in mind that the employee does not need to show that the employer intended to harm him. To win a §132a claim all the employee needs to prove is that a detrimental action was taken by the employer, and that the action was the consequence of an industrial injury or claim.

   The majority of 132a cases involve termination of the employee following an occupation injury. "Detriment" in those cases is difficult to identify. In addition to termination, the Worker's Compensation Appeals Board has held that loss of benefits, loss of seniority, harassment, violation of privacy and refusal to provide medical treatment all constitute actions to the determent of an employee. It has been generally held that an employee need only show harm to prevail on this issue.

   The California Supreme Court, in Department of Rehabilitation v. WCAB (Lauher), above, added another layer to this analysis. In that case, an employee's injury stabilized and, as opposed to temporary disability benefits, the employee began receiving permanent disability benefits. The employee returned to work but took time from his workday to attend medical appointments related to his occupational injury. His employer, the California Department of Rehabilitation, required the employee to use his accrued vacation or sick time for those appointments. The employee brought a claim for discrimination under Labor Code 132a.

   The California Supreme Court agreed with the lower court that, although the employee was able to show that the employer's actions worked to his detriment, an industrially injured employee must also show that "he or she had a legal right to receive or retain the deprived benefit or status, and the employer had a corresponding legal duty to provide or refrain from taking away that benefit."

Defending Against a Claim of Discrimination: The Business Necessity Defense.

In Barns v. WCAB (1989) 216 Cal App. 3rd 524, 266 Cal. Rptr. 503, 54 CCC 433, the court held that an employer can overcome a presumption of discrimination by proving that its actions were compelled by business necessity. This requires demonstrating the workplace realities which justified the discrimination. There are two elements to the defense: First, the employer must show 1) the necessity of its actions. Second, it must show that those actions were "directly linked to business realities."

Later cases have softened these elements a bit by holding that the employer will be excused from the penalties of discrimination if it can show that it had a reasonable belief that its actions were necessary.

The key to proving a "business necessity" defense is to show that the question posed above ("Would the same action have been taken against this employee had there been no injury?") would be answered "Yes." This can be achieved by showing that the decision equally affects more employees than just the injured worker or that the employee broke a rule (safety or otherwise) that exists separate and apart from the injury or illness and that the rule is not applied in an arbitrary fashion.