LEGAL GUIDE
Written by attorney George Ellis Corson IV | Apr 20, 2011

Penalties for 132a Discrimination

It is the declared policy of the state of California that there should not be discrimination against workers who are injured in the course and scope of their employment. [1] Discharging an injured employee, threatening to discharge an injured employee, or otherwise discriminating against an employee because of a work injury claim is a potentially misdemeanor, and may subject the employer to an uninsurable penalty.

The penalty for 132a discrimination may include any or all of the following:

  1. 50% increase in compensation, up to 10,000 cap;

  2. Attorney costs, not to exceed 250.00;

  3. Reinstatement to prior position, if able to perform;

  4. Reimbursement for lost wages resulting from the discrimination.

Although an employer may not treat an injured worker adversely merely because of a pending workers’ compensation claim, the law does not require the employee to give additional privileges or rights not afforded other non-injured employees. For example, a probationary employee may not be discharged as a result of a work injury, but does not satisfy the probationary period while on disability; he would return to work at the same status that he was prior to injury. If that resulted in later termination within the probationary period for other non-suitability, the discrimination allegation would probably fail.

If the employer has a uniformly applied personnel policy, discrimination is more difficult to prove. When the employer terminates all employees after 3 days of No Call/No Show in absence of medical documentation regardless of cause (illness, cancer, pregnancy, work injury, etc.), there was no discrimination. [2] In fact, preferential treatment to industrial injuries in such a situation may substantiate a discrimination claim for worker fired without work injury.

If a 132a penalty is alleged against your company, you should consult an attorney. A Certified Specialist in Workers’ Compensation is qualified to advise you of your liability and available defenses.

[1] Labor Code §132a

[2] Robinson v. WCAB 70 CCC 262 (2005)

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