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Getting hurt on the job can result in much more than the physical pain that accompanies the injury.  The unexpected healthcare and recovery costs that arise due to such an injury can be expensive.  Additionally, suffering an injury can cause an employee to miss time from work, preventing them from being able to earn a paycheck.  For these reasons, the state of California requires employers to have workers’ compensation insurance to reduce the burden on employees that are injured on the job.  However, some employers might discriminate against employees who file worker compensation claims.  Luckily, California has enacted statutes that give employees a right of action against employers who discriminate or attempt to discriminate against them due to worker compensation claims.

Worker Compensation in California 

Workers’ compensation is a social insurance program that provides wage replacement and medical benefits to employees that are injured in the course of employment.  In exchange for these benefits, employees are required to forfeit their rights to file suit against their employer for the tort of negligence.  Unlike most other social insurance programs, no government agency is responsible for administering benefits to injured workers.  Instead, insurance companies or companies that are financially secure enough to self-insure their workers’ compensation liability administer the benefits.  Typically, general damages for pain and suffering and punitive damages for employer negligence are not available in workers’ compensation plans.  Employees are typically required to report injuries to their supervisor or employer within 30 days, or they could lose their right to receive workers’ compensation benefits.  If there arises a dispute between the employer and employee about whether the injury was sustained in the course of the employment, the California Division of Workers’ Compensation can usually resolve it.  In August 2012, the California State Senate passed Senate Bill 863, which was the culmination of negotiations between representatives of several labor unions and employers who jointly worked to reform the workers’ compensation benefits system in the state.  This bill focused on creating a more efficient system, increasing the benefits to injured employees, and also cutting unnecessary costs to employers.

California Labor Code 132a

California instituted Labor Code 132a in response to some employers and insurance companies that threatened or committed retaliatory or discriminatory action against employees that filed for workers’ compensation benefits.  § 132a makes it a misdemeanor for any employer to discharge, threaten to discharge, or discriminate against any employee who has filed for, has made his or her intent known to file a claim for, or has been awarded workers’ compensation benefits.  The statute also protects employees who agree to testify on behalf of another employee who attempts to claim or is awarded workers’ compensation benefits.  In addition, § 132a makes it a misdemeanor for an insurer to advise, direct, or threaten an insured under penalty of cancellation or a raise in premium or for any other reason, to discharge an employee because he or she has filed or made known his or her intention to file a claim.  In addition to the misdemeanor, the employer may be required to increase the injured employee’s claim amount by up to one-half.  Therefore, it is important to contact an attorney to ensure that you are receiving the maximum amount of benefits available to you.

CALIFORNIA GOVERNMENT CODE SECTION 12900

In addition to section 132a, the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)) prohibits various types of employment discrimination, including discrimination based on a physical and/or mental disability as defined under the statute. (Gov. Code, § 12921.) In City of Moorpark v. Superior Court (Cal. 1998), the California State Supreme Court held that § 132a “does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies.”  Hence, under FEHA, and as a matter of public policy, an employer can face liability if it discriminates, retaliates and/or fires an employee for pursuing or filing a worker’s compensation claim.

If you feel that you have been discriminated against for filing a claim for workers’ compensation benefits, or testifying on behalf of an employee who filed a claim for benefits, contact the Law Office of George G. Romain for a free consultation.

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