Small School Districts' Association (SSDA) Newsletter, April 29, 2016

Employers often worry, for good reason, that they are unable to take an adverse employment action against an employee who has made a claim for workers' compensation. But, if an employer is prepared for the inevitable 132a discrimination charge, employees on workers' compensation are not immune from being disciplined.

Why should employers care when it is third party administrators who handle workers' compensation claims? Employers should care because 132a claims are not covered by insurance, so the insurer or third party administrator often will not handle the 132a claim, leaving the employer to obtain its own defense and pay the settlement or judge's award out of the employer's pocket.

Labor Code 132a provides that an employer may not discharge, threaten to discharge, or in any manner discriminate against an employee for filing or intending to file a workers' compensation claim or for testifying in another employee's case. Discharge and threaten to discharge are straightforward, but "in any manner discriminate" is broad and unclear. A successful 132a claimant can be ordered reinstated, paid lost back pay, and have the workers' compensation award increased by fifty percent.

In Wollenweber v. County of Riverside, Sheri Wollenweber alleged in her 132a petition that the County discriminated against her for filing a workers' compensation claim when she was moved to another desk that was not ergonomically correct and when she was written up for neglect of duty. Her case did not involve a discharge or threat of discharge. Rather, Wollenweber needed to prove that the actions taken against her were discriminatory and in violation of Labor Code 132a. She was required to show she had a right to a particular condition of employment, benefit, or particular status and that she was detrimentally singled out because of her workers' compensation status. Wollenweber was unable to convince the Workers' Compensation Appeals Board (WCAB) that the County discriminated against her.

The County compiled a legitimate, solid documented history to support the written reprimand, causing the WCAB to note: "[t]he employer documentation of applicant's job deficiency is more credible than applicant's various responses." Wollenweber had received a written reprimand for neglect of duty because she did not timely complete her assignments and several complaints had been received about her from clinics and patients. She acknowledged the turnaround time for referrals was five days for routine and two days for urgent referrals. Yet, by August, she still had not completed referrals from April, May, June and July. Her pre-workers' compensation claim performance evaluations also noted four areas relating to productivity that needed improvement.

Having documented Wollenweber's performance deficiencies prior to her filing the workers' compensation claim was helpful in the County's defense. However, every situation is different and documentation may not exist. If there is no documented history prior to the employee's workers' compensation claim, don't despair; the employer is not required to ignore an employee's post-workers' compensation performance or discipline issues out of fear of a discrimination claim. Nonetheless, the employer should ensure policies are being applied uniformly to avoid the appearance of singling out the employee who has filed a workers' compensation claim. Wollenweber may have been able to prove discrimination if she had shown that the County did not discipline other employees for the same or similar conduct. Employers also may not want to take the opportunity to start enforcing previously unenforced policies against the employee who has filed a workers' compensation claim because that would appear to be discriminatory.

Disciplining an employee who has filed a workers' compensation claim can be stressful for an employer, particularly when a 132a claim could be on the horizon. It is not impossible, however, as illustrated in theWollenweber case, to discipline an employee. It just needs to be done correctly. Training supervisors in documentation and handling employees who have filed workers' compensation claims will also help employers when making discipline decisions. When in doubt, risk management, human resources, and attorneys are resources that can help decision makers navigate the discipline process concerning employees who in reality are not impervious.