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Applicant Attorney Has Filed a Labor Code Section 132a Claim. Now What?

September 30, 2016

 

From the Desk Of: William H. Yoo, Esq.

Shareholder Attorney, Santa Ana

 

 

 

 

 

 

Recently, we have seen an increase in Labor Code §132a claims filed in conjunction with a filing of an Application for Adjudication for a workers’ compensation injury. This article explains what a 132a claim is, and how to handle it.

 

Labor Code §132a provides: “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…Any Employer who discharges, or threatens to discharge, or in any manner discriminates against any Employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her Employer or an application for adjudication, or because the Employee has received a rating, award, or settlement, is guilty of a misdemeanor and the Employee's compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such Employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the Employer…”

 

Essentially, a Labor Code § 132a claim is an allegation by the Applicant that they were discriminated against for threatening to file or actually filing a workers’ compensation claim. Procedurally, Labor Code § 132a claims must be filed within one year of the discriminatory act or one year from the date of termination. If they fail to file timely, the 132a claim is barred by the statute of limitations.

 

For Defendants, it is important to identify who is defending the 132a claim. Since there is an inherent conflict of interest between the insurance company and the Employer in regards to defending a Labor Code § 132a claim, most Employers hire their own counsel to defend these claims. However, unlike Insurance Code § 11661, which prohibits insuring an Employer’s liability in workers’ compensation for serious and willful misconduct, there is no express provision allowing or disallowing insurance against Labor Code § 132a claims.

 

Once there has been a determination as to who is defending the claim, the next step is how to defend the claim.

 

In practice, most 132a claims presented to the WCAB are prima facie invalid in accordance with 8 CCR § 10447, which states “Any person seeking to initiate proceedings under Labor Code § 132a other than prosecution for misdemeanor must file a petition therefor setting forth specifically and in detail the nature of each violation alleged and facts relied on to show the 2 of 2 same, and separately pleaded so that the adverse party or parties and the WCAB may be fully advised of the specific basis upon which the charge is founded.”

 

Most Applicant Attorneys fail to comply with 8 CCR § 10447, especially, in regard to the “specifically and in detail” language of that section. In these circumstances, I strongly recommend that a petition dismissing that claim be filed immediately. Usually the Workers’ Compensation Judge will either give Applicant Attorney leave to amend their pleading, or set the matter for hearing where the Applicant Attorney can attempt to explain his deficient pleadings.

 

If Applicant Attorney’s pleadings have been amended, Defendants have 20 days to respond to Applicant Attorney’s petition for discrimination benefits pursuant to Labor Code §132a. So, time is of the essence. There are numerous issues in regards to the discovery process, privilege, privacy and the right for applicant to access Third-Party personnel records.

 

Practically speaking, most Labor Code § 132a claims can be dismissed or resolved at a big discount if they are handled correctly from the onset. The Applicant has the burden to prove discrimination due to filing a workers compensation claim. Usually this comes down to witness testimony.

 

If you are faced with a Labor Code § 132a claim, do not hesitate to contact Parker & Irwin. We can provide a free initial consultation to review your claim.

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