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Injured Worker Discrimination Claims Are Back – Big Time!

injured worker

A recent decision by the WCAB puts Section 132(a) (discrimination for filing a work comp claim) squarely back on the table.

The decision is far reaching and is an indication how far afield the WCAB is willing to go to show employer discrimination against an injured worker.

Samantha Rivera v. County of Alameda

In this case, Samantha Rivera v. County of Alameda, there is an ‘admitted injury’. Rivera applied to use her accrued sick leave time pay to augment her TTD payments.

Line of discrimination between injured workers and non-injured workers

Alameda had a written policy that injured workers could only use accrued vacation pay and comp time to augment their TTD payments. So far, so good for Alameda. This is written company policy and is considered part of a ‘collective bargaining agreement’.

The problem is the written policy also stated non-injured workers could use vacation time, comp time, AND sick leave time to augment their pay when they were off work. By itself, this shows a line of discrimination BECAUSE Rivera was an injured worker worker and Alameda’s written policy did not allow injured workers to use sick leave time to augment their pay when they were off work..

The WCAB ruled against Alameda because they held injured workers to a different, and lesser, standard – clearly discrimination.

Alameda’s defense was that, in order to maintain a Section 132(a) discrimination claim, Rivera had to show Alameda discriminated against her personally. The WCAB rejected this defense saying a discriminatory policy against a class of employees is, de facto, discrimination against anyone that falls into that class.

A side issue not relevant to this case, but provided the motivation for Rivera, is sick leave, if not taken, will expire where vacation and comp time will not. Rivera would have been materially disadvantaged if not able to use sick time – she would lose it.

The take-away from this decision is two-fold: Section 132(a) discrimination claims trumps collective bargaining agreements and the scope of what is discrimination against an injured worker according to the WCAB isn’t clearly defined but it ‘casts a wide net’.

Let the employer beware

It’s going to be a whole new world out there for employers – at least until something changes. The Latin saying, ‘caveat emptor’ is now, ‘let the employer beware’.

New imperatives for the employer: Any work place injury must be handled with the greatest discretion. The world of work comp is like baseball – the tie goes to the runner (in this case, the injured worker). Unless the facts are so clear as to be unmistakable, any ambiguous situation will be decided for the injured worker and against the employer.

Avoid discrimination claims.
An employer should always consult with a work comp professional on how to treat an injured worker.

The DOs and DON’Ts on this subject are too numerous to list here. An employer should always consult with a work comp professional on how to treat an injured worker and avoid discrimination claims. On this subject, neither claims adjusters or medical providers will be a reliable resource. They have no vested interest – they can’t and won’t give advice. If they do, it will not be in the employer’s best interest.

Consequences of a discrimination claim

Is it a problem if an injured worker (or their Applicant Attorney) files a discrimination claim against an employer? Yes, it is!

01A penalty. If the ruling goes against the employer, is the employer will have to pay the injured worker additional compensation (actually, a penalty) of 50% of the settlement – up to a maximum of $10,000 plus $250 in expenses.

02The really bad news is that will not be covered by the employer’s work comp policy. It will come directly out of the employer’s pocket.

03Worse, the work comp carrier will likely not defend the employer – regardless of the merits of the claim of discrimination. The purpose of the penalty for discrimination is ‘to punish and deter’. The employer is barred from insuring against a discrimination claim.

This recent ruling should be a ‘wake-up call’ for employers. The work comp terrain just got more treacherous – tread carefully.

Bill Cobb

The above article pertains to Section 132(a) of the California Labor Code only. There are separate issues involved in ‘Serious and Willful’ violations and violations of the Americans With Disabilities Act (ADA – Federal) and the Fair Housing and Employment Act (FEHA – California). These are all closely tied to work comp injuries as well.

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