How to Prevent Workers’ Compensation Retaliation

In California, employees have the right to workers’ compensation benefits regardless of fault. An employer should never do anything to prevent workers from filing claims or punishing them afterwards. Even if a claim was denied or considered frivolous, an employer has no right to respond with negative actions.

What Is Workers’ Compensation Retaliation?

Workers’ compensation retaliation is any negative action an employer takes against an employee eligible to file a workers’ compensation claim. California Labor Code Section 132a addresses the unlawful retaliation against anyone who has filed or declared an intention to file a workers’ compensation claim. Acts of retaliation may include:

• Purposefully demoting or transferring a capable employee because he or she was injured or filed a workers’ compensation claim
• Terminating an employee before he or she had an opportunity to file a claim
• Terminating an employee because he or she filed a claim
• Enforcing a reduction in pay that is not in accordance with workers’ compensation laws
• Disciplining an employee for filing a claim
• Reducing hours for an hourly employee
• Intimidating or threatening an injured employee to reduce premium payments
• Giving unwarranted negative employee reviews

These acts of retaliation are specific and require a strong case to prove. Employees are not automatically untouchable after a workplace injury. An employer may still take legally justified actions against any employee. Both injured employees and witnesses are protected under retaliation laws.

Preventing Workers’ Compensation Retaliation

Employers can take steps to reduce the risk of retaliatory actions with proactive legal oversight. A few of the ways companies can reduce the risk of retaliation claims include:

• Following workers’ compensation laws, such as posting relevant information in public places and informing employees of their rights
• Supporting injured workers’ who need to pursue a claim with the proper documentation and resources
• Consulting legal counsel before taking any potentially adverse action against an injured employee or one who has filed a workers’ compensation claim
• Keeping detailed records of internal communications as they pertain to the injured worker

Employees can protect their right to workers’ compensation by:

• Keeping employer communication records
• Reading up on rights as an injured worker in the state
• Complying with their employers to the best of their abilities during the claims process
• Contacting an attorney the moment they run into trouble with a claim or employer actions

Proving Workers’ Compensation Retaliation

An employee or former worker needs more than a bad feeling about an adverse action to prove retaliation. Documentation in the form of emails, letters, and voicemails provide the strongest evidence, but verbal statements can also incriminate an employer. Timing, body language, inconsistent behaviors or mood changes, and falsified evidence can strengthen a retaliation case.

If an employer does not have a supported and firm legal reason for taking action, an employee may pursue retaliation actions. In California, workers’ compensation retaliation is considered a misdemeanor, and proving retaliation may increase an employee’s damages by as much as $10,000. Employees need to file a complaint with the state’s Division of Workers’ Compensation within one year of the negative action to make a retaliation claim in California.

Injured employees may not file a lawsuit for workers’ compensation retaliation, but they may file a lawsuit based on other discriminator grounds. An employee may file a lawsuit if the employer’s discrimination violated the ADA (Americans with Disabilities Act), the FEHA (Fair Employment and Housing Act), or the EEOC (Equal Employment Opportunity Commission).

For more information as an employee or employer in a workers’ compensation retaliation action, contact the Orange County work injury attorneys at DiMarco Araujo Montevideo. We can walk you through your legal options and advise your next actions.