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. For more background, see Navigating California Workers' Compensation: A Guide for Employers.
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 returning would risk further injury or aggravation to an existing 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 the worker was "singled out" or otherwise treated differently than others.
- Where the company makes return-to-work or light-duty decisions without medical proof.
For related information on claims and medical-treatment issues, see Workers' Compensation and Workplace Safety.
Note that ERISA often preempts benefit-discrimination claims in this area.
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Frequently Asked Questions
What must an employee prove in a Section 132(a) claim?
An employee must show an industrial injury caused some detriment and that they were treated differently or singled out because of the injury.
Can an employer avoid liability by showing business necessity?
Yes; legitimate business reasons such as lack of work, layoffs, or documented safety concerns can justify actions that otherwise might appear adverse.
Do return-to-work decisions need medical support?
Employers should base return-to-work or light-duty assignments on medical evidence to reduce the risk of a retaliation claim.
How does ERISA affect these claims?
ERISA can preempt some benefit-related discrimination claims, which narrows the available remedies in certain situations.