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Labor Code Section 132(a)- What if my lawyer does not want to pursue this violation? I have valid evidence of this violation

Chatsworth, CA |
Attorney answers 3

Best Answer

For the Attorney, it's 3 times the work for 1/2 the money.

There's no insurance for a LC 132a violation, so the attorney has to locate and personally serve the petition on your employer's Agent for Service of Process.

At court, you have the burden of proving the employer's State of Mind, virtually impossible.

Then after proving the employer terminated you solely as payback for your request of comp benefits, the employer just answers with a Business Necessity defense.

Unless you have an upper-level executive in good standing at this company willing to be a 'whistle blower' and testify there was no business need for filling your position to stay afloat and that the one and only reason they fired you was to retaliate, it's virtually impossible to win the 132a trial.

The benefit to pursuing a 132a petition is to get an order from a judge that the employer must re-hire you ... and pay your wages from the date you were able to return to full duty.

Trouble is, if you were never again released to full duty without permanent restrictions, there are no lost wages.

I file the 132a Petition on the cases where my work was terminated in retribution, but almost always settle it... frequently the employer is willing to come up with a couple thousand dollars to be rid of the worker without a trial.

The 132a claims in which I've been sucessful had a long list of co-workers who had bad-faith tactics from the employer in their comp claims, and another had an upper-level executive with 18 years experience who had retired who was happy to testify to a pattern of this employer discriminating unreasonably against people who got hurt at work.

It takes A LOT MORE than just saying you got injured then the boss fired you.

In a recent decision, the WCAB refused the worker's attorney the right to get all the employees' personel files to prove the 132a violation. So you will NOT be permitted to get other workers' personnel records. They're records are protected.

WITH ALL THIS many law offices have a policy of never accepting a 132a claim. Most attorneys refuse to handle the 132a Petition if they are not also handling the more simple work injury claim also.

So be prepared to switch attorneys if you are confident you can prove to a judge that the discrimination was retaliation for your requesting comp benefits (and not any other business reason), and you have witnesses or documents showing the only reason was retailation and not business needs.

A Certified Specialist attorney costs just the same as a non-specialist but Specialists passed a bar exam just in workers comp. So find a Certified Specialist attorney who will file and prosecute BOTH the 132a Petition and your case-in-chief.



Prior to me showing up for "alternate work offer" the position I currently held while injured was posted online shortly after claim was accept by WCB. It stated position requirements clearly that position would "fully accomadate any ALL disabilities for position". When I brought it up to HR manager that morning I had printed out a copy , she brushed it off right away, that same day position was edited and added work demand that would conflict wit my restrictions that day.Copied old position posting and compared to new position and the position that they had me there for alternate work which would be more confliction with restrictions. Co-Worker relayed to me that my managers in my department are done with me for injury. Civil case would be the way to go then? after they decline my return to work? HR manager want to put me somewhere to work manager want me out. They could fully accomadate my position as it was that a floater i had many positions (research and development had to be a hybird of positions)

Nancy J Wallace

Nancy J Wallace


There MAY be an Americans With Disabilities Act civil action IF you can prove you could perform all 'essential job functions' with a 'reasonable' accommodation... but finding an ADA Attorney is going to be tough. It's super expensive for ADA Attorneys so they hand-pick only easy winners. Try taking a copy of the P&S report and the published job advertisement to an ADA attorney; make it easy for them.


If you and your attorney do not agree on your case strategy, you must ask that attorney for a detailed explanation as to why he or she does not think pursuing that particular Labor Code violation is worthwhile. If the attorney cannot articulate a reason to you, or you still do not agree with the attorney's explanation, then I suggest you contact another attorney for a second opinion.


Many workers' compensation attorneys choose not to pursue 132a claims for reasons other than the merits of the case. Workers' compensation is an unusual practice area in that a claimant's attorney usually has 50 to 300 cases going at the same time, which is an enormous number. This is possible because a workers' compensation practice involves the same issues over and over again, and much of the work can be done by paralegals or other staff. When something is outside the usual workers' compensation procedure, such as a 132a case, the attorneys realize it will take more work than usual and add relatively little value to the case. So, they choose not to pursue them. I don't practice workers' compensation law, but this kind of refusal makes me uncomfortable. There may be things I do not understand about a workers' compensation law practice that would make this refusal okay, and attorneys certainly are not required to take every case or pursue every possible claim; it is the flat refusal to ever take these cases that disturbs me.

However, even without pursuing a 132a case, you may have other legal protection that an experienced plaintiffs employment attorney can pursue. You may have rights under the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) and/or the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA). Many on-the-job injuries meet the definition of "disability" under the FEHA, or under the FEHA and the ADA. If they do, you may be entitled to reasonable accommodation for your disability. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Rights under the FEHA are triggered when an employer has at least 5 employees. Rights under the ADA are triggered when an employer has at least 15 employees. Any rights under the FEHA or the ADA are separate from rights you may have under workers' compensation.

Please look at my Avvo guide on the ADA: and my Avvo guide to the differences between the ADA and California's more generous FEHA:

You may also have rights under the California Family Rights Act, Government Code section 12945.2 (CFRA) and/or the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). These laws allow covered employees to take a maximum of 12 weeks per year of unpaid leave due to a serious medical condition. The 12 weeks can be taken all at once, in increments of fractions of an hour, or anything in between. The only limit is that the total time off cannot exceed 12 weeks in one year. To be eligible under the family leave laws, all of the following must be true: (1) your employer has at least 50 employees who work within 75 miles of one another; (2) you have worked for this same employer for a total of one year, even if not consecutively; (3) you have worked for this employer for at least 1,250 hours in the immediately preceding year; and (4) your medical condition meets the definition of “serious medical condition” under the family leave laws. Your rights under the CFRA or the FMLA are separate from any rights you may have under workers' compensation.

(continued in Comment below)

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

Marilynn Mika Spencer

Marilynn Mika Spencer


(continued from Answer above) Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): If you have been fired, you may have a claim for wrongful termination in violation of public policy. When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy. Public policy refers only to acts that are specifically prohibited by a statute (law) enacted by the legislature, not allowed under the state or federal constitution, or prohibited by a regulation promulgated (established ) by a government agency. Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status, pregnancy, genetic information, and a few other categories. Also, public policy prohibits discrimination against people who blow the whistle on a matter of public concern; complain about improper wage and hour practices; refuse to falsify documents (especially reports or certifications to the government); or who exercise voting rights, family leave rights, workers' compensation rights, jury duty rights, domestic violence rights, and more. To discriminate in violation of public policy means to treat individuals in one group differently from others who are not in the same protected group, but are similarly situated. Thus, an employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations. There are various ways to enforce these rights, depending on the particular public policy involved. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area. I hope you can resolve your situation and wish you the best.

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