In the last issue, we discussed the fact that there are two types of claims which can arise in a workers' compensation proceeding that are typically not covered by workers' compensation (or any other) insurance. Serious and willful claims were discussed in that article. In this article, we discuss the claim that a worker was retaliated against for presenting a workers' compensation case, under California Labor Code § 132a.

An injured employee may, in addition to the standard workers' compensation claim, assert that he or she was retaliated against by the employer for filing that claim or for testifying on behalf of another employee in regard to a workers' compensation claim. Under Labor Code § 132a, an employee who proves such retaliation is entitled to a 50% increase in the workers' compensation benefits (up to $10,000.00), costs and expenses of up to $250.00, and reinstatement and reimbursement for lost wages and benefits. When a § 132a claim is made, the workers' compensation insurance carrier will notify the employer that such claim is not covered and, further, that the attorney retained by the carrier to defend the workers' compensation claim will not be defending the § 132a claim. The employer is thus faced with the expense of retaining independent counsel to represent it.

It is important to recognize that sometimes workers' compensation proceedings drag on for months or even years. In such a situation, a reinstatement with back pay award can be an extremely expensive proposition, not to mention the unhappy prospect of a disgruntled employee returning to the employer's work force. Further, even though the worker has brought the claim in the workers' compensation proceeding, he or she is not restricted from filing a claim for discrimination under the Fair Employment and Housing Act and following that up with a civil suit. In fact, it is not unheard of for savvy plaintiffs' attorneys to use the workers' compensation proceeding to obtain discovery to support a separate civil action for discrimination. Thus, careful handling of the § 132a claim in the workers' compensation tribunal is extremely important.

Employers are sometimes inclined to ignore § 132a claims, believing that they are totally without merit. Though that may be true, the consequences of failing to respond appropriately to such claims can be disastrous. It is important, therefore, to obtain qualified, independent counsel promptly upon being notified that a § 132a claim has been made.

WFB&M has several attorneys with experience in responding to § 132a retaliation claims. Please feel free to contact Sage Knauft of the WFB&M Orange County Office at sknauft@wfbm.com, (714) 634-2522, or any WFB&M attorney with whom you have a working relationship.


back to top | Volume 6, Issue 2 Index