Employer Retaliates Against Employee for Making a Worker’s Compensation Claim

Brad Nakase, Attorney

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Is it legal for my employer to retaliates against or fire me for making a worker’s compensation claim? 

If you have suffered an injury on the job and have filed a worker’s compensation claim, your employer is prohibited from retaliating against you for these reasons. However, it is imperative that the employee can prove there is a casual link between the retaliation and the claim being filed. Speaking with an attorney can help you further understand whether your claim is viable and whether further compensation should be sought.

Employees who are hurt during the course of work may file a worker’s compensation claim in order to recover. However, although it is prohibited under law, an employer may become upset and terminate the employee for doing so. This action is called retaliation. This article will explain retaliation and why it is prohibited specifically when an employee files a worker’s compensation claim.

What is worker’s compensation claim?

Worker’s compensation claim is an administrative pleading filed with the employer. It is different than other types of claim because the purpose or goal is for the employee to be compensated quickly. This though process arises because there are likely medical bills piling high and times the employee cannot work. Further, an employee may even suffer an injury so harsh, he or she is permanent hurt and cannot return to his or her position.

However, not all employers fall under this availability or remedy. In order for worker’s compensation to apply, the employer must have:

  • Insurance[i]

  • The injury occurred during normal business[ii]

  • It must be understood this is the exclusive remedy[iii] (cannot file then sue the employer personally) and
  • The fault of the injury does not matter as long as it was not done maliciously or willfully (employee set up a way to be injured and fell in order to receive benefits or an employer pushed an employee purposefully off a ladder).

If the above is met, an employee can file a worker’s compensation claim against the employer.

What does retaliation look like?

Once a worker’s compensation claim has been filed, an employer cannot retaliate against the employee. Retaliation comes in many forms.

For example, if the employee files a claim and the employer then fires the employee because of the claim, that would be retaliation. Although the employee does not have to be fired to prove retaliation.

Another example could be having to take days off to tend to the injury and the employer penalizing the employee, like reducing wages. Under California law, this is prohibited. In order to prove retaliation, an employee must show:

  • He or she engaged in conduct protected under the labor code (filed a worker’s compensation claim)[iv]
  • The employer engaged in adverse employment action (like firing the employee)[v] and
  • There was a link between the two above.[vi]

If the above are met, the employee will successfully show the employer engaged in retaliation and recover damages. Employees may also be entitled to reinstatement of his or her position if fired or lost wages due to the employer’s actions.[vii]

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Legal Reference

[i] Labor code § 3700

[ii] Labor code § 3202

[iii] Labor code § 3601

[iv] Labor Code § 132(a)

[v] Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, hn 26

[vi] Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, hn 26

[vii] Labor Code § 132(a)