I conducted an examination of California Labor Code, Section 132(a) Workers Compensation retaliation claims filed over many years. When filing a Section 132(a) claim, “in addition to establishing that the industrial injury has resulted in some detriment, the worker must also prove that he or she was singled out for disadvantageous treatment because of the injury.” This is typical of how other states handle Workers Comp retaliation claims. Some states allow workers to bring separate claims outside the comp system. Here's a summary of these cases:

Conduct that will not result in a 132(a) verdict:

  • Where there is truly no work available.
  • Where the employee is unfit for duty because they will risk further injury or aggravation to an injury.
  • Where there are safety issues related to the employee or third parties.
  • Where there's a business necessity (such as lack of funds or a change in company direction).
  • If they were terminated for cause (and consistently with how others were treated in engaging in similar wrongdoing).
  • If there's a layoff or reduction in force.

What's not OK:

  • If there/s a change in pay, hours or duties without a business justification.
  • Where they were “singled out” or otherwise treated “differently” than others.
  • Where the company makes return-to-work or light-duty decisions without medical proof.

Note that ERISA often preempts benefit discrimination claims in this area.

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