Wrongful Termination on Workers’ Compensation Violates California Labor Law

June 10, 2013 2 Comments

By Jane Mundy

Palm Springs, CA Valerie believes the Board of Directors at the non-profit where she worked as executive director for 16 years violated the California labor law. “Besides filing a claim with LawyersandSettlements, I filed an unemployment claim and I need to file with the California Labor Board,” she says. “At this point I am trying to find representation for wrongful termination.” Since being fired just last week, Valerie says she is “stunned and devastated.”

At issue is an incident that happened almost a year ago. Valerie (not her real name) was injured on the job. She filed a workers’ compensation claim and took a few weeks off work. Her doctor said she could return to work on modified duty: she couldn’t lift anything more than 10 lbs. Then Valerie had a death in the family and requested time off to attend a memorial service for a family member. She got permission and decided to take three weeks total: two weeks vacation leave and one week family leave.

“On the day I was scheduled to return to work, I was terminated as soon as I walked in the door,” says Valerie. I couldn’t believe it - I had nothing negative in my personnel file. However, one of the board members had an issue with me from last March regarding the board fundraising and recruitment, which they insisted I did even though it was against the bylaws and articles of incorporation of the company. I believe they were just waiting for an opportunity to fire me and save money.”

Valerie was told some financial issues warranted her termination, but that took place two years ago and she was cleared of any wrongdoing. “They told me that because of my long service I had the opportunity to resign,” says Valerie. “I refused to resign because I haven’t done anything wrong.

“They told me that all my stuff was packed. I left my keys behind, made sure I had all my belongings and left. I was stunned. I literally bent over backwards for this agency and I have gone without pay. I was on salary and worked many hours without overtime compensation. I never even asked for overtime pay. They were short-staffed (that is how I sustained my injury - because maintenance wasn’t around to help me move furniture and boxes) so I did much more than my job description called for. I even cleaned toilets.

“I was devastated. I don’t even know where to begin regarding unemployment and filing a claim with the labor board. I am still fumbling my way around because this is something I never expected. I do know that if I were to resign I wouldn’t be entitled to unemployment.

“I believe they gave me the opportunity to resign so that they wouldn’t be held responsible for their actions, meaning wrongful termination. Knowing this board, they believe in what they think is right, and that is why they don’t fundraise. In the case of wrongful termination, they likely believe my workers’ compensation case has ended and therefore they have a right to fire me and not consider it retaliation.”

Although Valerie was able to return to work, she was still under her doctor’s care and was getting workers’ compensation for her injury. Her claim is still open. Her doctor’s “Return to Work Order” received by the board of directors before she took those three weeks off stipulates that Valerie would have to “stand at will” because she has a bulging disc, she cannot sit for long periods of time working on the computer, and she would have to take breaks throughout the day for the pain to subside.

At this point Valerie doesn’t know if she has a wrongful termination claim.

However, the California “at will” employment policy does not allow employee termination for filing a workers’ compensation claim; Retaliation; Disability; Time off for Family Leave and Medical Leave, among other reasons.

California Labor Code section 132a makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who has filed or is thinking about filing a workers’ compensation claim, or an employee who has received a workers’ compensation award. The employee who has been discriminated against is entitled to a penalty (not to exceed $10,000), reinstatement, and reimbursement for lost wages and work benefits.

Area of Law Wrongful Termination

Industry Business & Office

2 Comments

John Slingerland
June 16, 2013

I was injured by equipment that the company design, a safety pin failed and sheared off causing a machine to roll over throwing my body into a steel table. I was taken to get medical treatment and given a urine test, I had never been given a urine test upon being hired. I had been prescribed medical marijuana for PTSD and Insomnia, I had stopped taking the meds in 12-2012 under my doctors care and prescribed another medicine. The injury took place 4-2013 for which I still showed positive on the urine test 4 months later. I had never used the medication before or during work or possessed any meds at work. Upon returning to work the next day the I had informed the manager that I was using hydrocodone for the pain and he stated don't care about the meds I also told him that I was on light duty for the rib injury, he put me to full duty. I contacted my doctor about this and the doctor call my work. 4 days later after the urine test cam back positive I was terminated. The employee hand book states that the employee can be put on suspension and OR terminated.
John M. Hodgden, Sr.
June 16, 2013

My son, Junior, was injured on the job here in Florida, a Right-to-Work state, and was denied W/C benefits. A law firm is handling the W/C claim independent of any other complaints that might exist. In the documents recieved from the benefits administrator was a copy of the agreement between the Primary employer, the PEO (a contracted HR administrator leaseback agency) and the claims administrator. Their agreement stated that any employee filing a Workers Comp claim must submit his/her resignation from the company or forfeit his/her W/C. His injury was serious enough that he was given hours or maybe a day or two, left to live if life saving surgery wasn't administered immediately. Recieving treatment or not was not an option. It was a must do. Any attempt to get the W/C attornys to look at this violation, (in my head), of the Worker's Comp anti-retaliation clause has been met with rebuttal. They only want to focus on getting the W/C, which is what the case is all about in the first place. I've started lobbying the politicians and leaning on various departments about this pre-emptive retaliation in writing in the contracts but haven't gotten any responses yet. I'm curious as to how your anti-retaliation clauses are worded.