Timing of Termination Leads to Labor Code 132a Violation
In the recent writ denied case of St. John Knits v. WCAB 84 Cal.Comp. Cases 846, the WCAB affirmed a WCJ’s finding that the Defendant discriminated against the Applicant in violation of Labor Code 132a.
In St. John’s, the Applicant was terminated 14 days after she filed an application for adjudication of claim. The Defendant terminated the Applicant’s employment alleging that the applicant failed to return to work after receiving a medical release and being informed that modified work was available.
The Applicant, who had been an employee since 1992, testified that she had not been informed that modified work was available and further testified that she did not know she had been released to return to modified work at the time of her termination.
The Supreme Court in Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal. 4th 1281, has commented on the standard needed to be met in a Labor Code 132a case. In interpreting the Lauher case, the WCAB found that in order to establish a prima facie case of a Labor Code 132a violation, “an employee must show they were subject to disadvantages not visited on other employees because they were injured.” (See St. John’s v. WCAB 846 CCC 846, 849.)
In the case at hand, the WCAB accepted the WCJ’s finding that the Applicant was credible. The WCAB also agreed with the WCJ’s reasoning that the timing of the termination, just 14 days after the application was filed, along with the evidence that the Applicant was a long term employee who testified she was terminated on false grounds that she had failed to report for modified work, lead to the conclusion that the Defendant subjected the applicant to disadvantages not visited on other employees because they were injured.
The Defendant filed a Petition for Writ of Review which was denied based on the WCAB’s reasoning.
In light of the St. John’s case, multiple issues should be considered when considering termination of an employee who has suffered an injury. First, case law is clear, you must treat an injured worker the same way you would a non-industrially injured worker. (You cannot subject an injured employee to a disadvantage not placed upon other employees.)
Second, as a Defendant, you must be able to defend yourself in court. The WCAB noted, that although the Applicant established a prima facie case, the Defendant could have rebutted the prima facie case by showing that it’s conduct was necessitated by the realities of doing business. The court noted that the Defendant presented no rebuttal witnesses or documentary evidence to show that a light duty position had actually been offered to the Applicant. There was no written offer to the Applicant produced in court for the light duty job and there was no evidence that the applicant was advised of her release to modified work. In short, the Applicant’s case went unchallenged other than a credibility question raised by the Defendants.
Accordingly, an employer would be wise to document their actions when conducting the realities of doing business and consider what evidence can legitimately be produced to defend their actions if called into court.