WCDefenseCA

Isn’t it odd that employers are cautioned not to terminate an employee’s employment just because there is a workers’ compensation case hanging in the air?  After all, Labor Code section 132a prohibits discrimination because of a workers’ compensation claim… but what if the workers’ compensation claim is just a coincidence and not a cause?

In Department of Rehabilitation v. Workers’ Compensation Appeals Board, the Supreme Court told us that an employer need only avoid “treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.”

The following case is an example of why employers are forced to walk on eggshells around workers who allegedly sustained work-related injuries.

In the case of Angela Moreno v. City of Glendale, Ms. Moreno claimed that the termination of her employment was an illegal and discriminatory act, as she had claimed a work-related injury.  The record included a long list of reprimands and unsatisfactory and below average performance reviews.  Some of Ms. Moreno’s less-than-admirable qualities?  “inefficiency, incompetency, neglect of duty, failure to perform assigned duties, and failure to meet job performance standards.”

So this is a slam-dunk, right?  We’ve got a worker who has been cruising for a career bruising; aching for a tenure breaking; and shooting for a job booting (not to mention aiming for an employment shaming).  What’s wrong with finally letting her go and become a blessing to some other employer?

Workers’ compensation is the problem.  Because of her comp claim, the entire human resources process smacks of discrimination, as the distinction between causation and correlation is discarded in light of a possible pay-day.

And this makes sense, because, as my readers may recall in the case of Lucas Marinics v. Gilmore Heating & Air Conditioning, the dissenting commissioner noted that the only reason not to tolerate Mr. Marinics further was the workers’ compensation claim.  And in this case, we have poor performance reviews going back to 1998… why wait this long to cut the cord? (The splendor of government employment…)

The WCJ found that applicant’s claim of 132a discrimination was defeated because she “did not present any witnesses or documentary evidence of any type showing that she was treated differently from nonindustrially injured employees.”  The WCAB concurred.  But, in a way, she had won – she had forced her employer to waste a bunch of time and money defending the baseless claim of an employee who was a documented poster child for at-will employment.

So your humble blogger’s advice?  Instead of sinking money into a lawyer to defend a baseless claim and sending your employees to testify instead of doing their actual jobs, just get rid of crappy employees when you realize that they’re crappy, and don’t wait for a workers’ compensation claim to be the last straw.