Managing Employee Injuries and Disability and Occupational Safety

2. D ISCRIMINATORY A CTS P ROHIBITED

The statute thus prohibits:



Discharge;



A threat to discharge; or

 Any other discrimination against an employee.

The acts against which an employee is protected from discrimination include:

 The employee’s filing of an application;

 The employee’s making know his intention to file an application with the Workers’ Compensation Appeals Board;

 The employee’s receipt of a rating, award or settlement;

 The employee’s giving testimony in a workers’ compensation case.

The statute has been given a very expansive reading and provides protection to industrially injured employees under circumstances which are not specifically delineated as above. In Judson Steel Corporation v. WCAB , 52 the California Supreme Court considered the issue of “whether an employer who terminates an employee’s seniority rights, and ultimately, his employment, because of the employee’s absence from his job as the result of an industrial injury, has engaged in unlawful discrimination within the meaning of Labor Code Section 132a.” The facts in the case were as follows: The employee (Maese) has been employed as a crane operator. Approximately a year after he started his job, he suffered an industrial injury when he slipped and fell. He reported the injury, and for several months thereafter received medical treatment. He later applied for workers’ compensation benefits for his injuries. He was off work for approximately 16 months, when on the direction of his treating physician, he returned to work. Two days later, his employer, Judson Steel, laid him off. Judson justified the layoff by relying on a clause in the union contract which resulted in the elimination of Maese’s seniority and the ensuing termination of his job. A clause in the contract on which Judson relied provided that an employee’s service and his seniority shall be terminated when an employee has not performed any work for the company for twelve consecutive months as a result of illness or injury. Maese filed a petition for a violation of Section 132a, and the WCAB conducted a hearing. At the hearing, the union business agent testified that there had been a practice whereby the union and the company had mutually extended the 12 month grace period for absences due to injury, with a result that an injured employee’s seniority and employment would be maintained. The union business agent also indicated that if he were advised that an absent employee was injured on the job, he would “want to know why the employee is not being kept on the seniority list if he got hurt.” There apparently was an established practice whereby the company would advise the union that an employee had suffered an industrial injury, and the union and the company would consent to extend the 12 month period. The Workers’ Compensation judge granted Maese’s

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 63