You have two potential courses of action when an employer is discriminating against you due to a physical disability or workplace injury. First, you can file a claim for penalties within the workers compensation system pursuant to Labor Code Section 132(a). If you already have a workers compensation attorney, they should take care of this for you.
You may also have a potential civil claim for discrimination pursuant to the California Fair Employment and Housing Act. Claims pursuant to FEHA are more complicated and time consuming but the rewards are potentially much greater.
Given the complexity of the issue, I recommend that you consult with an attorney for a thorough evaluation.
The information provided above does not create an attorney client relationship, nor is it meant to be legal advice. The analysis of any issue is highly dependent on the facts and circumstances of each individual matter. We recommend that you seek a free consultation with an attorney to further address your questions.
Labor Code 132a prohibits an employer from punishing or discriminating against an employee for getting injured on the job, for seeking workers' comp benefits or for hiring an attorney. If you feel your employer is violating this section of the law, talk to a good workers' comp attorney right away.
There are plenty of excellent W.C. attorneys in SFV. Find a good one here at www.avvo.com or at www.caaa.org. CAAA is the association for attorneys here in California who represent injured workers. Or you can call me for a referral. Good luck.
I am not commenting on any workers' compensation aspect of your case. I write to make sure you are aware 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.
Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.
*** 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. ***
Types of personal injuries Work-related personal injuries Fraud Employment Employment law and finances Workers' compensation Unemployment compensation Employee benefits Discrimination in the workplace Reasonable accommodation of employees FMLA (Family and Medical Leave Act) and employees Sick leave and work hours Civil rights Discrimination