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132a Claim Defeated b/c No Evidence of Discrimination

Happy Friday, dear readers!

Although your humble blogger is, from time to time, far from your inbox and your computer screen, his beloved readers are never far from his heart and his thoughts.

Recently, the Court of Appeal denied review of an applicant’s pursuit of 132a penalties.  As my readers know, Labor Code section 132a imposes additional penalties on employers for discriminating against injured worker.  Penalties include up to $10,000, as well as $250 for attorney fees and, the most bitter pill of all, REINSTATEMENT!  Some employees are so troublesome and disruptive that there are employers that might actually write a check for $10,000 just to be rid of them.  (Your humble blogger cannot stress enough how bad of an idea this is.  Do not… DO NOT… discriminate against employees because of industrial injuries!)

In the writ denied case of Hollins v. Kaiser Foundation, applicant claimed she was the victim of discrimination during the process by which she was ultimately rehired and returned to full employment.  The WCJ found applicant failed to carry her burden to prove discrimination.

The injured worker alleged that she was not given adequate accrual of paid leave time during her periods of non-employment due to her industrial injury.  She also claimed that Kaiser had discriminated against her by failing to provide her with a return-to-work specialist.

Following an excellent discussion of the Supreme Court’s decision in Lauher, the WCJ noted that it was applicant’s burden to prove that, in addition to suffering some detrimental or disadvantageous consequences as a result of her industrial injury, she must also prove that she was singled out for treatment due to the industrial nature of her injury.  Absent some proof of this, applicant’s petition for 132a penalties must be denied.

The WCAB denied reconsideration without comment and the Court of Appeal denied review.

Now, here’s a thought, dear readers.   How much do you think it cost poor Kaiser to fend this claim off?  Applicant apparently had absolutely NO evidence to prove discrimination such that would satisfy both Lauher and Labor Code section 132a.  Nor are we dealing with an unrepresented injured worker – applicant had counsel in this case.

If an applicant can drive litigation costs in a 132a matter to approach exposure for actual wrong doing, doesn’t the law allow frivolous 132a claims to simply shake down the employers?  In fact, this very issue came up long ago when the employer retained counsel and filed a malicious prosecution action in a 132a claim.

The next time we have one of our universally beloved reforms, perhaps we should require a bond for 132a claims.  That way, if there really is no evidence of 132a discrimination, the employer can recoup some of the costs in defending a meritless 132a case from the bond.  What’s that you say, dear readers?  Poor, exploited workers can’t afford to post bonds?  Your humble blogger is engaged in victim blaming?

Not so – if the injured worker is represented by counsel, counsel can get a full idea of the available evidence and post the bond him or herself.  If the applicant’s attorney looks at the facts and thinks there is actual merit to the 132a claim, a recoupable bond is a small investment.  If, by contrast, the attorney finds that there is really no merit to the claim except scorched Earth, then perhaps the thought of forfeiting $5,000-$10,000 of his or her own money on a frivolous pursuit will curb baseless claims.  It will also serve to incentivize defendants to fight off frivolous claims instead of paying to make them go away.

With that thought, dear readers, your humble blogger wishes you a wonderful weekend and hopes you will decline to join the angry mob of pitchfork wielders amassing outside his office.

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