Episode 50: 132a Workers' Comp Pitfalls to Avoid

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's general counsel and executive Vice president. And with me today is Jennifer Shaw of the Shaw Law Group. Welcome, Jennifer.

Thank you.

And today we're going to talk about something that's a little bit archaic and a little bit unique. It's 132A claims. And people might be saying, what are they even talking about? And it has to do with workers compensation claims.

It does. And I'm so excited to be here to talk to you about this because there is so much misunderstanding out there. So let's do a little bit of a primer.

I love it. Yes.

We have folks who get injured at work. Either something happens to them, there's an accident, or maybe there's something going on in the workplace that makes them ill. We all know that they can file a worker's compensation claim now. They may even need to take time off. As you might know. One of my big peeves in the universe is there's no such thing as a workers compensation leaves of absence. But there may be a reason for someone to take time off because of a workers compensation claim. Now, here's where 132A comes in. Labor code section 132A says, we cannot retaliate against anyone who has filed a workers comp claim. So what does that mean? Well, somebody goes off on workers compared, okay, they have an injury, they're gone. And now we decide we're restructuring the organization. Their position is eliminated if they have a lawyer for the underlying workers compensation claim, which is very likely. What the employer will see next is a petition for increased benefits due to retaliation, a 132A claim. And employers get very confused about these kinds of issues because there are three critical things that we miss. Number one, you do not get represented on a 132A claim by the same representative you have for the underlying workers compensation claim. You can't. There's a conflict of interest, Right? So somebody's injured at work. Then the same person can't defend you when they also claim they've been mistreated because of that claim. So that's the first problem. Second problem is people tend to dismiss the 132A claim saying, oh, well, they'll just settle as part of the underlying workers comp claim. Well, here's the problem. The remedy for a 132A claim is up to $10,000 in increased benefits. Fine. We can live with that. Attorney's fees and costs. Okay, well, deal. Reinstatement they come back to work, this is a problem. Okay, so that's the second thing we have to think about. The third thing is employers forget that they're getting advice about their 132A claim from the workers Compensation Adjuster who, who doesn't know anything about employment law. I'm sorry, everyone should stay in their lane and gives them advice about things that are completely contrary to what they should be doing. From an employment law perspective, those three issues get employers in a lot of trouble.

And I think those three issues are related to underlining workers compensation issues because so much of it is driven by the adjuster or the claims manager or whomever the workers compensation carrier is. And it is one of those different areas that employers, HR folks, even employees, they're uncomfortable touching.

Yes, well, and part of it is because workers compensation is a no fault system, right? So there are these claims that you can have for what's called serious and willful claims where the employer really didn't protect the employee. So in that case, there is fault, but for just the basic generic workers compensation claim. Doesn't matter why it happened, it happened. Let's fix the problem. Retaliation is all about fault. It's all about blaming the employer for something that has happened. Now, just like with any retaliation claim, we need a causal connection, right? So fine, I filed a workers comp claim and I was fired. But was I fired because I filed the workers compensation claim? Where's that causal connection? That's where a lot of this comes into play. Because just as you said, Erica, the workers compensation adjuster, the actual company representing the employer on that underlying claim, they're handling it, but they're not going to be helpful on. Well, what do I do if I have to do a layoff or this person had a performance issue before they went on leave for a workers compensation reason. How do I deal with that? Those issues need to be dealt with with your HR department and your Employment Law council.

And I think that one of the things to talk about too is when we talk about retaliatory action or retaliation, that could be a whole host of issues, right? The obvious or.

The one that creates the most exposure is the example that you used. An individual files a worker's compensation claim and then they're terminated. What was the reason for the termination? Now, I know that there has been situations where it's just luck have you, that the individual is going to be fired and HR just hasn't had a chance to have that conversation. And that individual does get hurt and does file a worker's compensation claim. But HR has all the documentation to support it. But what about those situations where retaliation is based more on how they were perceived in the workplace after filing a worker's compensation claim or how they were treated in the workplace? It's very similar to what we see when we have individuals with pregnancy disability leave or regular medical leaves of absence. The only thing that's different here, and significantly different, is we're dealing with not only labor and employment law, but we're also dealing with the workers compensation system, which is totally separate. And which is why you really importantly discuss the fact that you've got two different representations. You've got the workers compensation road, and then you have the labor and employment dealing with that 132A claim.

That's right. And that's what's confusing. Even the system itself is different. You go to the Workers Compensation Appeals Board. It's nothing like a courtroom. The rules of evidence generally don't even apply. It's very tricky for employers and there is this desire to sort of sit on the 132A claim. But one of the things that we find employers are really struggling with is they get this advice from the workers comp carrier. Don't ever fire someone who has an open workers compensation claim. Never change anybody's work environment if they filed a claim. You can't do that. You have to run your business. So it's back to the original thing that we've talked about time in and time out. Make sure you have a legitimate reason for what you're doing. Obviously, you can't pick on someone because they filed a workers compensation claim. They have a right to do that. I know it upsets employers. It's a cost in doing business. Get over it. It is what it is. If there's some fraud on the claim, you'll figure that out with your carrier. In the meantime, you need to figure out how am I going to run my business to make sure that I don't draw a 132A claim.

And I think that's a great point to make. So when employers are dealing with workers compensation claims and working with their adjuster and their carrier as they need to, they should also be working with hr, outside counsel, whoever it may be, to deal with those workplace issues and to ensure that the work can still get done, even though someone unfortunately had been injured on the job, and you've got this sort of 132A Gremlin out there that you're worried is going to come and get you, that's a great way.

To describe it because that gremlin actually drives a lot of decisions in the workplace that it shouldn't be. I mean, I had a call with someone a couple days ago where they said, oh, well, I'm not going to do the restructure now because one of the employees is on leave, but for a workers compensation related reason, no, do your reorganization. If that's what you've got to do, do it. Don't be driven when you're making employment decisions by something that's going on in the workers compensation arena. That is a very important way to get people in trouble. And think about this. Many lawyers who have handled these workers compensation claims, including 132, as they have now conveniently moved over to the area of reasonable accommodations and disability discrimination, because rightfully so, those concepts are very related and they realize that many employers don't get the relationship.

And to that end, Jennifer, the next time we get together, we should talk about reasonable accommodation for individuals that have filed those workers compensation claims. Because it's a very similar situation where employers get confused by the permanent disabled, permanently disabled classification, thinking, oh, great, the employee can't come back to work, they're permanently disabled. Recognizing that that's totally different in the workers compensation realm as it is to labor and employment and the protections afforded to employees.

Well, that's right. And similarly, you have employers who have return to work programs where they say, oh, well, my modified duty or my return to work program is only for folks who have been off work because of workers comp. Hey, if it was a reasonable accommodation for John because he had a workers comp claim, it could be a reasonable accommodation for Jill who hurt skiing.

Right.

There's no such thing as I'm only doing modified duty for my workers comp folks. And the carriers don't mean to do this. I know it sounds like I'm picking on them. Their idea is I want to keep the employer's mod rate down. I want to keep the cost down. It's totally reasonable. The problem is you're going to draw a disability discrimination claim. Failure to accommodate, failure to engage in the interactive process. If you have a system where you're saying, these folks, I'll let them count hangers in the dressing room because they were injured at work. But these folks who were injured outside of work, nope. They've got to be able to perform the essential functions of their current job or a similar job for which they're qualified. You're sunk at that point.

Yep, yep, yep. All really good things to talk about for another day, unfortunately. So, just rounding out Today's podcast with 132A claims, what's the best nugget that we could be giving employers as a takeaway as they leave the podcast?

Do not ignore the claim and consult with your labor and Employees Employment Council. It's critical.

I love it. That's great. And thank you all for listening to the workplace. Please subscribe, share and comment about Cal Chamber's podcast by visiting calchamber. Com.