Grinberg: WCAB Finds 132a Violation in Post-C&R Termination

Tuesday, August 3, 2021 | 0

What’s the average Labor Code 132a claim like?

Gregory Grinberg

Well, if you ask a workers’ compensation defense attorney, 99 out of 100 are just nonsensical shakedowns thrown in to squeeze a few extra thousand dollars out of the case. Most of the time, when the case-in-chief is being settled, the 132a is dismissed or “resolved” and everyone walks away with an acceptable level of misery and disgust. After all, a countersuit for malicious prosecution of a 132a is not out of the question, right?

But once in a rare while, you see a 132a case that goes all the way. Not just to trial, but to the Workers' Compensation Appeals Board so that we can all read about it. Such is the case of Sarway v. Walgreens Family of Cos., a recent WCAB panel decision.

Applicant sustained an admitted injury in 2011. In 2015, the case-in-chief was settled by way of compromise and release. Well, in 2016, applicant filed a claim for 132a benefits, alleging his employment was terminated shortly after the case was resolved. Between the date of injury and the C&R being signed, applicant was convicted of felony sexual assault from 2013 and felony false impersonation from 2007. 

In 2013, applicant was arrested and jailed for less than a day but made bail and, according to applicant’s testimony, there was no requirement imposed upon him by his employer related to the arrest.

So what happened? Apparently, about two weeks after the case settled, the employer told applicant to “clean out his locker and desk two weeks after returning to work after settlement of his claims.” 

After trial, the judge ruled that defendant violated Labor Code Section 132a and awarded pretty much the maximum that 132a affords as a remedy: $10,000 in penalties, $250 in costs, and lost wages. 

Labor Code Section 132a subsection (3) provides for reinstatement as well, but reinstatement is not listed as a remedy resulting from trial. 

On reconsideration, the WCAB affirmed the finding, noting the workers' compensation judge's reasoning of the timing of the termination and the lack of any evidence explaining business need or any other reason for termination.

Assuming there are no facts that happened but didn’t make it into the record, it looks like applicant may have been fired as soon as his workers’ compensation case was resolved. Normally, a C&R might include a resolution of any actual or potential 132a claims but would not apply to violations of 132a that had not occurred at the signing of the C&R. 

If an employer really wanted to part ways with an injured employee, a resignation letter could usually be obtained as part of a C&R; Section 132a is hardly triggered by an injured worker. Just because a case is resolved, that doesn’t mean an employer is now free to retaliate against an employee for having filed the claim to begin with. If there is another reason to terminate the employment, that should probably be documented and presented as evidence for the defense at the 132a claim trial.

Sometimes, employers — and by this, I mean not the business as an entity but individuals within the business — who are not entirely familiar with the workers’ compensation system might take a claim personally. They might feel that the applicant is lying about the injury, exaggerating symptoms, or possibly are just mad about the increased workers’ compensation premiums. In those cases, without good advice, a rash decision is sometimes made: terminating an employee, or, mistakenly thinking it is “safe” to retaliate after the case is over.

Hopefully, this case will serve as a reminder that the merits of a workers’ compensation claim are addressed at the WCAB, for better or for worse. Labor Code Section 132a prohibits taking retaliatory action against an employee even after the case is resolved.  And if there are strong and hostile feelings over the workers’ comp claim, a voluntary resignation may be the best way to address those feelings.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.