California Labor Code §132a — Workers' Comp Retaliation Explained

What does California Labor Code §132a actually say?

An employer cannot fire, demote, cut hours, refuse to rehire, or otherwise punish a worker because the worker filed or intends to file a workers' comp claim.

California Labor Code §132a prohibits an employer from discriminating against a worker because the worker filed or intends to file a workers' compensation claim, testified or intends to testify in another worker's proceeding, or received workers' compensation benefits. The statute makes the retaliation a misdemeanor and creates a private right of action that is heard at the Workers' Compensation Appeals Board, not in civil court.

The protected activity is broad. It covers a worker who actually filed a DWC-1, a worker who merely reported an injury to a supervisor under California Labor Code §5400, a worker who sought medical treatment for a work injury, and a worker who testified at a coworker's WCAB hearing. The retaliation does not have to be a firing, any adverse action that affects the terms or conditions of employment counts.

What are the three elements of a California §132a claim?

Adverse action by the employer, a workers' comp claim or stated intent to file, and a causal connection between the claim and the adverse action.

To prevail on a §132a petition at the WCAB, the worker must prove three elements:

Element 1, Protected activity

The worker filed a workers' compensation claim, reported an injury under California Labor Code §5400, sought medical treatment for a work injury under California Labor Code §4600, testified in a workers' compensation proceeding, or otherwise exercised a right protected under California workers' compensation law. The activity does not have to be formal, verbally reporting an injury to a supervisor is enough to trigger the protection.

Element 2, Adverse action

The employer took an action that negatively affected the worker's terms or conditions of employment. Common examples: termination, demotion, reduction in hours, transfer to a less desirable position, hostile work environment created after the claim, refusal to provide reasonable modified or light-duty work, sudden negative performance reviews that did not exist before the injury, and constructive termination, making conditions so intolerable that the worker is forced to resign.

Element 3, Causal connection

The adverse action was motivated, at least in part, by the worker's workers' compensation claim or injury. Direct evidence (a supervisor's recorded statement, an email expressing frustration with the cost of the claim) is rare. Causation is usually proved by circumstantial evidence: timing (the closer the adverse action to the protected activity, the stronger the inference), pattern (other employees who filed claims were treated similarly), pretext (the employer's stated reason does not hold up under scrutiny), and statements by supervisors or managers about the claim.

Where is a §132a claim litigated?

The retaliation petition is filed at the WCAB and litigated at the same district that handles the underlying workers' comp claim.

Unlike most employment discrimination claims that are filed in civil court, a California §132a claim is heard at the Workers' Compensation Appeals Board, typically at the same district office handling the underlying workers' compensation case. The judge is a Workers' Compensation Administrative Law Judge, not a jury. The standard of proof is "preponderance of the evidence", more likely than not. Discovery is more limited than civil litigation but still includes subpoenas, depositions, and document requests.

The §132a petition is usually filed alongside the underlying claim, so both move through the WCAB on the same calendar. After trial, if the worker disagrees with the Findings and Award on the §132a issue, a Petition for Reconsideration can be filed within 25 days of service by mail (or 20 days from electronic service) under California Labor Code §5903.

What remedies are available under §132a?

Reinstatement, back pay, increased workers' comp benefits, and up to ten thousand dollars added on top of the underlying award, plus costs.

If the worker prevails on a §132a petition, the WCAB can order four categories of remedies:

Reinstatement to the former position

The employer can be ordered to put the worker back in the position the worker held before the retaliation. In practice, reinstatement is sometimes impractical when the relationship has broken down, but the right to reinstatement gives the worker leverage in settlement negotiations.

Back pay and lost benefits

The worker is entitled to all wages and benefits lost as a result of the adverse action, base pay, overtime, health insurance contributions, retirement contributions, and other employment benefits, from the date of the adverse action through the date of resolution.

$10,000 increase in compensation

Under §132a, the WCAB can order an increase in the worker's compensation award of up to $10,000 as a penalty against the employer. This is in addition to back pay and is intended to deter employers from retaliating against injured workers.

Costs and expenses

The employer can be ordered to pay reasonable costs and expenses associated with the §132a petition, including attorney's fees for the retaliation portion of the case, capped at $250 under the statute.

What if the worker is undocumented?

Immigration status is not a defense; California retaliation protections apply regardless of documentation, and a no-cost certified interpreter is available at every hearing.

California Labor Code §3351 extends California workers' compensation protections, including §132a, to every worker regardless of immigration status. California Labor Code §244 prohibits an employer from threatening to report a worker's immigration status as retaliation for exercising labor rights, including for filing a workers' compensation claim. A §132a petition can be filed regardless of the worker's documentation status, and the employer cannot use immigration status as a defense.

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