Employer Retaliation

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Employer Retaliation

Los Angeles Workers Compensation Lawyers

Fear of Retaliation from Employer for Filing a Workers Comp Claim

When an employee sustains an injury at work, the law allows them to pursue a workers’ compensation claim for the injury, regardless of whether the employer was at fault or not. Many employees, however, are reluctant to file such claims because they believe that this will result in unfavorable treatment in the workplace going forward.

Moreover, many employers actually discourage employees from filing workers’ compensation claims. It is thus important that when employees are faced with such decisions, they search for the necessary advice in order to get acquainted with their rights under the law. You may read our site for further information regarding workers’ compensation, or contact a Los Angeles Workers Compensation Lawyer from our team for a consultation, advice and/or legal representation with respect to your particular issue.

Fear is often the reason why employees are reluctant to get workers’ compensation benefits that they may be entitled to, or altogether avoid letting their employer know about their injury. This should not be the case, as in California it is mandatory for employers to have workers’ compensation insurance, and in general it will not be your employer who pays your workers’ compensation.

For employees who are faced with fear over filing their workers’ compensation claims because they believe that their employer will in some way retaliate, this article will give the basic position of the State of California with respect to this issue, and it will give you the basic knowledge of your rights if you are in such a position yourself.

What is the position of California law in respect of the issue?

Most importantly, California law prohibits employers from discriminating or retaliating against employees who have sustained injuries as a result of their work. The California Labor Law clearly states in paragraph 132a that “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”. Under California law, there are various types of retaliatory conduct on part of the employer which could amount to unlawful conduct.

Can my employer fire me if I have filed a workers’ compensation claim?

Your employer’s reason for discharging or threatening to discharge you cannot be related to the following facts:

  • you have submitted a workers’ compensation claim to the employer;
  • you have filed an application to have California’s Division of Workers’ Compensation decide a claim;
  • you have announced your intention to file a claim or an application for receiving workers’ compensation benefits;
  • you have obtained a disability rating from a physician;
  • you have settled a workers’ compensation claim with your employer,
  • you have been awarded workers’ compensation as a result of your claim, or
  • you have testified in favor of a fellow employee in their workers’ compensation proceedings.

Furthermore, case law also protects employees from retaliation by their employer when they have missed work due to a work-related injury. According to the California Supreme Court, “an employer may not discharge an employee because of the employee’s absence from his job as the consequence of an injury sustained in the course and scope of employment”.

From what has been outlined above, the answer to the question posed is no, your employer cannot fire you based on the fact that you have filed, or are going to file a workers’ compensation claim.

If my employer does not fire me, can they retaliate against me in a different way?

As discharging you due to your future or past claim is clearly unlawful, perhaps you are worried that your employer will find another way to retaliate against you. Under California law, employers are prohibited from penalizing their employees for having a work-related injury, and for making a claim for workers’ compensation in connection with that injury.

Penalizing is not limited to firing. An employer is considered to unlawfully discriminate or retaliate against an employee when that employer engages in conduct which is detrimental to the employee as a result of the work-related injury or illness.

Common ways in which employers retaliate include:

  • giving bad performance reviews;
  • reducing your wage unjustifiably;
  • refusing to promote you unjustifiably;
  • demoting you without justification.

Example: You have been injured while at work, and as a result of your injury you are required to spend three weeks on bed rest in order to make a full recovery. You had just been promoted to a senior position at work, but your employer is not happy with the fact that you are missing work, and with the fact that you filed a workers’ compensation claim in order to cover your medical expenses. As a result, your employer strips you of your seniority. The actions of your employer effectively penalize you for being injured, and thus represent engaging in unlawful discrimination and retaliation.

However, it is necessary to point out that not every act on part of your employer which is detrimental to you is necessary in retaliation, and thus unlawful. Policies adopted by your employer which apply to all workers shall not be considered to be discriminatory, which is logical since you cannot have a discriminatory policy if it applies to all. This should be differentiated from situations where one worker who has suffered an injury is treated differently than other employees.

Will I then be reinstated to my old position after I have recovered?

Generally, yes, after you have recovered from your injury, you should be reinstated to your old position. Refusing to do so may put your employer in a position equivalent to that of dismissing you altogether. However, there are two instances where your employer’s actions in refusing to reinstate you will not be considered discriminatory:

  • If you are permanently disabled and thus cannot perform your job, then your employer will not be required to reinstate you. However, this depends on the nature of your job and the level to which you are impaired to perform your work obligations by your disability, as the fact that your job performance will be reduced by a disability does not always give a justification for an employer not to reinstate you.
  • If your position is no longer needed, the employer will not be required to reinstate you. Under California law, employers will not be required to hold a position open where their business no longer requires such a position in order to function.

What are the remedies available if I have received such treatment?

The remedies available to you due to your employer’s discriminatory treatment or their retaliation include, but are not limited to, the following:

  • Reinstatement;
  • Reimbursement for lost wages and work benefits caused by retaliatory acts;
  • Penalty which the employer pays the employee, to the amount of a 50% increase in the employee’s workers’ compensation award, but no more than $10,000.

It should be noted that receiving the penalty is not dependent on any actual financial losses suffered by you due to the employer’s retaliation.

How can I file a complaint?

If you believe that you have been subjected to retaliatory treatment, then you must complete and print Retaliation Complaint, DLSE Form RCI 1. It is important to ensure that the information you give is correct, otherwise you might experience delays in the process. You should also provide copies of any supporting documents available to you.

You can file the complaint in the following ways:

  • In person at any location of the Labor Commissioner's Offices;
  • By mail
  • By email
  • By phone
  • By fax

After your complaint has been accepted, it will be investigated and the Labor Commissioner’s Office will make a determination on whether there has been a violation, and identify proper remedies. If you are unhappy with the determination, you may be able to appeal.

Conclusions

Workers are often afraid of making workers’ compensation claims for fear of retaliation, or experience such retaliation as a result of the injury that they have sustained. You must not remain impartial to any such attitude towards you, as under the laws of the State of California you are protected against such actions by your employer. If you are uncertain of which steps to take, or whether to file a employer retaliation complaint, or a workers’ compensation claim, contacting an experienced professional is your best bet at receiving the legal expertise and support you need.

Our Work Injury Lawyers Los Angeles can give you a consultation based on your particular problem with respect to your workers’ compensation claim and employer’s retaliation. They will provide you with guidance on how to approach your employer, what to expect in terms of compensation, steps to take if you have been injured, and how to handle any discriminatory or retaliatory treatment from your employer as a result of that injury.

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