WCDefenseCA

Labor Code section 132a allows applicants to sue their employers for “discrimination,” which is normally some allegation of an adverse action taken against an employee because of an industrial injury.  By law, employers may not be insured for 132a claims and must bear the risks of liability and the costs of litigation themselves.  Non-workers’ compensation attorneys often find themselves asked to advise their business/employer clients in 132a matters, thinking this will be no different than contract disputes or employment law litigation.  It is different – save your sanity and contact a workers’ compensation attorney to help navigate the murky, murky, murky waters.

Recently, the Workers’ Compensation Appeals Board issued a panel decision in a 132a case, granting defendant’s petition for removal of a workers’ compensation Judge’s discovery order. (Lidia Borrayo v. Tobar Industries.)

To prove her case of discrimination, or possibly to scare the defendant into settling, applicant’s attorney proceeded on a protective order instructing defendant to produce voluminous records, including trade secrets and information about third-parties (other employees).  The defense lawyer properly sought removal (as opposed to reconsideration) seeking a significantly narrower scope for the discovery order.

Among the information originally sought was the amount defendant pays for workers’ compensation insurance, for its group health insurance, employer profit and loss statements for 2008-2010, balance statements, and a significant amount of information about other employees laid off or hired in the past.

The WCAB correctly reasoned that allowing the discovery order to stand would subject defendant to significant prejudice and irreparable harm, and ordered the case returned to the WCJ to have applicant prove that this seemingly irrelevant information is “reasonably calculated to lead to the discovery of admissible evidence.”

Applicants will often enough serve an employer with a “kitchen sink” subpoena, wanting anything and everything, most of which is completely irrelevant to the 132a claim.  Part of this is because applicants’ attorneys don’t want to waste their time narrowly tailoring a subpoena when there is a chance an uninformed defendant will comply with all of it.  Part of this is because the prospect of burdensome and exhausting discovery compliance can scare up more settlement dollars if the employer is not properly advised.

If you find yourself on the receiving end of these boilerplate subpoenas, have your attorney push back – there’s no reason why a former employee who will likely go to work for a competitor should be provided with your trade secrets.