Labor Code § 132a – Retaliation for Workers’ Comp Claims

California Labor Code § 132(a) prohibits your employer from retaliating against you for filing a workers’ compensation claim. Employers who do so face misdemeanor charges. You can also be awarded money damages, including:

• lost wages,
• back pay,
• attorney fees, and
• possible reinstatement.

In this article, our California employment law attorneys discuss the following topics:

• 1. Labor Code 132a Explained
• 2. Elements
• 3. Examples
• 4. Damages
• 5. Serious and Willful Misconduct
• 6. How Employers Fight Back
• 7. How to File
• Additional Resources

1. Labor Code 132a Explained

California Labor Code 132a forbids employers from discriminating against you for being injured in the workplace. You are entitled to damages if you are discriminated against for filing (or intending to file) a workers’ compensation claim. ¹

Your employer can be charged with a misdemeanor for firing – or threatening to fire – you because you filed a claim for worker’s compensation. Employers also cannot threaten you if you testify in another employee’s workers’ comp case.

LC 132A also applies to workers’ compensation insurance companies who advise or direct the employer to fire you because of a workers’ comp claim. Insurance companies are not allowed to threaten to cancel or raise an employer’s insurance premiums in order to get the employer to discharge you because of a workers’ comp claim.

2. Elements

In order to make a workers’ compensation discrimination claim under Labor Code 132a, you must prove these three elements:

1. You filed – or made known your intention to file – a claim for compensation, or you received a rating, award, or settlement in a compensation claim;
2. The employer fired, threatened to fire, or discriminated against you because of your injury or workers’ comp claim; and
3. You were singled out for disadvantageous treatment because of your injury or claim.²

Employers rarely come right out and tell you they are firing you because of a workers’ comp claim. They usually fabricate some other reason. However, it may be suspicious that you never had any significant disciplinary action until shortly after filing a workers’ comp claim.

In court, you must first establish by a preponderance of the evidence that you were discriminated against and that it caused you lost wages and benefits. At that point, the burden shifts to the employer to establish a non-discriminatory basis for why you were fired.³

3. Examples

An adverse action against an employee in LC 132a cases includes any type of treatment that disadvantages you. This includes not only wrongful termination or threatening to fire you. It could also include:

• Reducing your hours,
• Reducing your salary or hourly pay,
• Changing your work duties,
• Scheduling you at a time that the employer knows you cannot work,
• Failing to promote you,
• Reporting you for immigration violations,
• Constructively discharging you,
• Canceling your employment contract,
• Denying you benefits, or
• Encouraging other employees to punish you.

An employer does not have to follow through on the adverse action. Merely threatening you may be unlawful discrimination.

Example: Martin talks to his boss about going to the doctor after a fall at work. Martin’s boss says if Martin tries to file a workers’ comp claim, he may find out that he is not going to be qualified for most of the upcoming construction site jobs. Martin’s boss may be breaking California labor laws by making an implied threat that he will not give Martin any work in the future if he reports the injury.

4. Damages

California Labor Code 132a provides for specific damages. If you are discriminated against, you can receive:

• Increased compensation by one-half, up to $10,000;
• Costs and expenses (up to $250);
• Reimbursement for lost wages and work benefits; and
• Reinstatement to your prior position.

5. Serious and Willful Misconduct

An employer commits “serious and willful misconduct” if it intentionally acts – or fails to act – with the knowledge that a serious injury will probably result. An example is an employer knowing that its factory has serious safety hazards but choosing not to fix them.

When your work injury is caused by the employer’s “serious and willful misconduct,” your workers’ comp benefits can be increased by up to 50%. You can also receive up to $250 in costs and expenses.

Note that your total workers’ comp award may not exceed what you could have received in a traditional civil case.⁴

6. How Employers Fight Back

It may be a defense to LC 132a claims for the employer to show there was a reasonable business necessity for terminating you.

For example, an employer is not compelled to reemploy you if you are unqualified or your position is no longer available.

Similarly, an employer may not be guilty of discrimination if you cannot perform the work without risk of re-injury or further injury.⁵

7. How to File

You have one year to file a LC 132a claim with the California Workers’ Compensation Appeals Board (WCAB) from the date of:

• the discriminatory act or
• termination.

The WCAB handles claims only for increased compensation, reimbursement, and reinstatement, not whether your employer is guilty of a crime. For your employer to be criminally investigated, you can file a police report.

Additional Resources

For more information, refer to the following:

• Retaliation – Legal definition provided by the U.S. Department of Labor.
• Laws that Prohibit Retaliation and Discrimination – Overview by the California Department of Labor.
• Retaliatory Discharge Under Workers’ Compensation Law – Article in the N.Y.L. Sch. Law Review.
• Employees Should Be Treated Fairly: A Plea to Change the Workers’ Compensation Retaliation Statute – Cap. U. Law Review.
• Retaliatory Discharge for Filing a Workers’ Compensation Claim: The Development of a Modern Tort Action – Article in Workmen’s Comp. Law Review.

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