Would be that this would prolong case? Paper Work? He has case overload (other cases)?
What are the benifits of pursuing such violation? Those this include the 15% plus? Benefit vallue to case?
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.
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: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment and my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.
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. ***
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline