Many employees are injured on the job. This should come as no surprise to anyone. According to the California Department of Industrial Relations, based on estimates provided by the United States Bureau of Labor Statistics, there were 466,600 nonfatal occupational injuries in California in 2017. Department of Industrial Relations Release No. 2018-97.
California’s Workers’ Compensation SystemWorkers’ compensation is America’s oldest social insurance program. As with most other states, California has a no-fault workers’ compensation system paid for by employers. The idea behind the no-fault system is to make it easier on both employees and employers by dictating that it does not matter why the injury or illness occurred; regardless, the employer is responsible to provide the injured worker with workers’ compensation benefits so the worker can recuperate and get back to work. Workers’ compensation is designed as a compromise—employees are to receive prompt treatment for their injuries and needed income replacement regardless as to why the work injury occurred, and in turn, employees generally may not sue their employers in civil court even if their work injuries were due to employer negligence.
If you suffer a work-related injury or illness, California law requires that your employer pay for necessary workers' compensation benefits. California law requires that your employer either purchase a workers' compensation insurance policy or become self-insured. California Labor Code section 3700. California law requires your employer to post a California Department of Industrial Relations workers' compensation poster in the workplace, and information as to “the name of the current compensation insurance carrier of the employer, or when such is the fact, that the employer is self-insured, and who is responsible for claims adjustment.” California Labor Code section 3550. Your employer cannot deduct any amount from your paycheck to pay for workers' compensation insurance. The employer’s obligation to pay for workers' compensation insurance is a cost of doing business.
What You Should Do If You are Injured on the JobYou should report any work injury to your employer right away. If your injury or illness arose over time, you should report it to your employer as soon as you become aware that the injury or illness is or may be related to your employment. Workers' compensation insurance pays for your medical care. Workers' compensation insurance pays temporary disability benefits, if your work injury or illness prevents you from performing your job while recovering. Workers' compensation insurance pays permanent disability benefits, if you do not recover fully from your work injury or illness. If you suffer a work injury or illness and your employer is not insured, your employer is nonetheless responsible for all related medical bills. Workers' compensation benefits are the exclusive remedy for injuries suffered on the job if your employer is properly insured. If your employer is uninsured and you suffer a work-related injury or illness, you may file a civil action against your employer in addition to filing a workers' compensation claim.
Discrimination Against Employees Injured on the JobAccording to some estimates, as reported in such news outlets as the Sacramento Bee, workers’ compensation insurance coverage in California is the most expensive in the United States. An additional factor affecting workers’ compensation premiums is the employer’s loss history. Having a workers’ compensation claim or an increased number of workers’ compensation claims compared to previous coverage periods can cause future workers’ compensation premiums to go up. Moreover, a work injury often results in the worker having to take time off from work to recuperate and undergo treatment, or for hospitalization or for one or more surgeries depending on the seriousness of the work injury or illness. The fact is, the more time an employee is unable to work for medical reasons due to a work injury, the more effect the work injury is likely to have on the employer’s future workers’ compensation premiums. Moreover, the employer may have to shuffle staff work schedules or hire someone to temporarily cover the duties of the injured worker, a situation that could last days, weeks, or even months depending on the severity of the work injury or illness.
Thus, an employer may perceive work injuries as not only increasing its costs but also disrupting its day-to-day operations.
It should come as no surprise then that some employers have fired or otherwise retaliated against an employee for getting injured on the job, or reporting a work injury or illness, or making a claim to receive workers compensation benefits for an injury or illness suffered on the job.
Fortunately, California law protects employees and provides remedies for workers discriminated or retaliated against for seeking worker’s compensation benefits for injuries suffered on the job.
Labor Code Section 132AWhile the California workers’ compensation system is designed to act on a no-fault basis, the question of fault does come into play when an employer retaliates or discriminates against a worker because of his or her injury. California Labor Code section 132A begins with the words, "It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment."
California Labor Code section 132A continues and declares that employers are forbidden from terminating, discriminating against, or otherwise retaliating against any employee for: applying or intending to apply for workers' compensation benefits; receiving a rating (e.g. a measure of permanent impairment caused by the work injury or illness), award or settlement; or testifying or intending to testify in another employee's case. The question then often becomes whether the employer subjected the worker to an adverse employment action (e.g. termination or demotion) because of his or her work injury, or if the adverse employment action was motivated by a non-discriminatory reason (e.g. excessive tardiness or an act of theft just before the work injury occurred).
Forms of Discrimination or Retaliation Prohibited Under Labor Code Section 132AIn the past, employers have refused to open a workers compensation claim for an injured worker. Employers have told workers after a work injury that they have to use their vacation or sick time if they want to be paid for the time they are off work because of a work injury. See Andersen v. Workers' Compensation Appeals Board (2007) 149 Cal.App.4th 1369, 1377. Employers have reduced an injured worker’s pay or status because he or she was injured on the job. See Santa Barbara County v. Workers' Compensation Appeals Board (1980) 109 Cal.App.3d 211, 215. These are all violations of California Labor Code section 132A. Any sort of discrimination based on a work injury or illness is expressly forbidden by the language of the statute.
The statute lists several penalties that can be imposed on an employer that discriminates against an employee injured on the job. The list includes criminal prosecution for a misdemeanor, reinstatement and reimbursement for lost wages and work benefits, increasing the employee's workers' compensation award by 50% (up to $10,000), and reimbursement for any costs and expenses (up to $250) incurred in proving such discrimination.
Contact UsIf you have been threatened or retaliated against at your workplace due to your need for or pursuit of workers compensation benefits or treatment due to a worksite injury, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.