132a Workers’ Comp Pitfalls to Avoid

Employees who get injured at work, whether due to an accident or an illness, can file a workers’ compensation claim. What employers may not know is that employees who file a workers’ comp claim are protected from retaliation. In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss workers’ compensation retaliation claims and provide tips on how to avoid common problems.

Labor Code Section 132a

California Labor Code Section 132a prohibits employers from retaliating against any employee who has filed a workers’ compensation claim, Shaw reminds listeners.

If, for example, an employee takes time off related to a workers’ compensation claim and the business decides to restructure while the employee is gone and eliminates the employee’s position, an employer should expect a petition for increased benefits due to retaliation—a “132a claim”—if the employee has an attorney for the underlying workers’ compensation claim, Shaw explains.

Pitfalls to Avoid

Shaw outlines three situations that often get employers into trouble:

• Conflict of Interest: An employee should not be represented on a 132a claim by the same representative as for the underlying workers’ compensation claim because there is a conflict of interest.

• Not Knowing All Remedies Available: Employers tend to dismiss a 132a claim, perhaps thinking they can just settle under the underlying workers’ compensation claim. This thinking is problematic because one of the remedies for a 132a claim is reinstatement, meaning that the employee comes back to work.

• Advice From Adjusters: Employers should not rely on a workers’ compensation adjuster for advice about employment law.

These three problems are related to the underlying workers’ compensation issues because so much of the activity is driven by the adjuster, claims manager or whomever the workers’ compensation carrier is, Frank explains.

No-Fault System

Workers’ compensation is often an area that most people in the workplace are uncomfortable touching, and part of the reason it is uncomfortable is because workers’ compensation is a no-fault system, Shaw comments.

On one hand, there are “serious and willful” claims where employers didn’t protect the employee, so in that case there is fault. But for basic, generic workers’ compensation claims, “It doesn’t matter why it happened, it happened, let’s fix the problem,” Shaw says.

“Retaliation is all about fault,” Shaw notes. “It’s all about blaming the employer for something that has happened.” A causal connection is needed for any retaliation claim.

“Fine, I filed a workers’ comp claim and I was fired, but was I fired because I filed the workers’ compensation claim? Where is that causal connection?” Shaw asks.

Claim Adjuster’s Advice: Right or Wrong?

Questions about laying off an employee or an employee’s performance issues before going out on leave for a workers’ compensation reason need to be brought up with your human resources (HR) department and employment law counsel, not your workers’ compensation claim adjuster, Shaw clarifies.

Employers can struggle with the advice they receive from their workers’ compensation carrier. A carrier may say, “Don’t ever fire someone who has an open workers’ compensation claim” or “Never change anybody’s work environment if they filed a claim,” but you have to run your business, Shaw explains. It’s unrealistic to abide by this advice, Frank adds.

When employers are dealing with workers’ compensation claims and working with their adjuster/carrier, employers also need to be working with HR, outside counsel and whomever to ensure that the work can still get done even if someone has been injured on the job, despite worries that the “132a gremlin” will get you, Frank says.

“Don’t be driven when making employment decisions by something that’s going on in the workers’ compensation arena,” Shaw emphasizes.

Retaliatory Actions and Retaliation

The issue that creates the most exposure when talking about retaliatory actions and retaliation is when an individual files a workers’ comp claim and then is terminated.

In some cases, the individual was going to be fired anyway and HR didn’t have a chance to have the conversation yet. The individual gets hurt, files a workers’ compensation claim, but HR has the documentation to support the termination, Frank comments.

In other cases, retaliation is based on how an employee was perceived or treated in the workplace after filing a workers’ comp claim.

The important fact to discuss is that the employee will have two different representations. There is the workers’ compensation road, and the labor and employment road dealing with the 132a claim, Frank explains.

Workers’ Comp System Different

The workers’ compensation system is different.

The Workers’ Compensation Appeals Board is nothing like a courtroom, Shaw explains. The rules of evidence generally don’t apply and “it’s very tricky for employers.” Employers need to make sure they have a legitimate reason for what they’re doing. Obviously, an employer cannot pick on someone because they’ve filed a workers’ comp claim.

Return to Work Programs

Employers can also run into problems when crafting a “Return to Work” program. The program should not be just for employees hurt on the job, Shaw says.

“…if it was reasonable accommodation for John, because he had a workers’ comp claim, it could be a reasonable accommodation for Jill, who was hurt skiing,” she says.

If an employer has a system where employees who were injured at work get reasonable accommodation, but those who weren’t injured at work still have to perform the essential functions for their current or similar job, then the employer is sunk, Shaw explains.

The best takeaway, Shaw says in closing, is that employers should not ignore workers’ compensation claims, and consult with labor and employment law counsel should they receive a claim.

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