Navigating California Labor Code 132a Claims

By Brian Katoozi

Section 132a of the California Labor Code forbids employers from discriminating against any employee who files, or intends to file, a workers’ compensation claim. Discrimination under this statute is defined as any retaliatory act or threat made against an employee for exercising their legal rights under the workers’ compensation law. The burden is on the employee to prove discrimination under Section 132a. The employee must prove: 1) The employee filed a workers’ compensation claim or stated their intention to file a claim to the employer before any discriminatory act occurred; 2) The employer engaged in retaliatory acts such as termination or the threat of termination due to the employee’s work-related injury or workers’ compensation claim; and 3) The employer’s retaliatory act singled out the employee.

However, employees frequently find it more lucrative and in their best interest to file a disability harassment or discrimination lawsuit under the Fair Employment and Housing Act (“FEHA”) in civil court. The penalties for a violation of Section 132a include a 50% increase in compensation up to a $10,000 cap, attorney costs not to exceed $250, reinstatement if able to perform, and reimbursement for lost wages. On the other hand, FEHA’s remedies are designed to eliminate discrimination and provide broad protections for workers employed by public and private employers, labor organizations and employment agencies. (Additionally, FEHA protects not just employees, but also applicants, unpaid interns and volunteers, or persons providing services pursuant to a contract.)

Labor Code 132a claims are regularly filed alongside workers’ compensation claims rather than employment claims because 132a petitions can only be filed if the employee has a pending Workers' Compensation Appeals Board (“WCAB”) case, and 132a claims must be adjudicated at the WCAB. The attorney representing the employer for the 132a claim should work closely with the attorney representing the employer on the workers’ compensation claim, assuming the same attorney does not handle both claims. Most 132a claims can be resolved together with the workers’ compensation claims through a Compromise and Release, which must be filed with the WCAB.

One option for employers to avoid 132a claims is to offer terminated employees a small amount of severance pay in exchange for a general release and waiver of all civil claims arising from the employee’s hire, work at, and termination, including 132a claims. While the California Labor Code prohibits employers from entering into an agreement with an employee wherein the employee waives his or her right to pursue workers’ compensation benefits, this does not appear to bar such waivers with respect to 132a claims. A California Court of Appeal has held that an employer may enter into a severance or settlement agreement by which an employee releases all civil claims, including claims under section 132a. See Integrated Healthcare Holdings, Inc. v. Weiss (2010) 2010 Cal.App.Unpub. LEXIS 7227. Because the Integrated Healthcare decision was not certified by the Court of Appeal for publication, it is not binding on lower courts. It is, however, instructive for understanding whether courts might enforce such agreements if asked to rule on them.

Attorneys in Lewis Brisbois’ Labor & Employment group are available to advise employers on these and other issues.