“ After filing a work comp claim, the employee experiences an adverse employment action, such as demotion, decrease in pay, decrease of work hours, loss of benefits, assignment to unfavorable tasks, suspension, or even termination. Such actions contradict California law, which prohibits discrimination based on disability or medical condition.”
Q: WHILE using one of the common elevators at work, I was severely injured and had to undergo multiple surgeries. I missed several weeks of work and may need to take more time off due to treatments. I have filed a worker’s compensation claim. However, I am feeling anxious about my employer terminating me because of my injuries. What can I do?
A: Filing a worker’s compensation claim is a good start to allow the treatment of your injuries. However, as employment and personal injury attorneys, we often suggest that our clients take a look at other circumstances of their work. The following related issues may arise and should be closely evaluated to see if other remedies are available:
The condition which caused the injuries was created by a third party, or parties other than the employer. For example, if the manufacturer or owner of the elevator was responsible, a civil case may be pursued against them, independent of the workers compensation claim. A civil lawsuit allows a broader scope of damages and increases the monetary recovery of the injured employee.
The employer denied the employee’s request for family or medical leave. Employers with employees of 5 or more are prohibited from denying employees the right to use their medical leave. They are prohibited from discharging, demoting, suspending, or discriminating against an employee for using such leave for themselves (or even to attend to an ill family member). If an employee had lawfully taken a sick leave, the employer cannot count this as absence that may lead to disciplinary action.
The employer denied the employee’s request for reasonable accommodation. If a disabled employee is unable to perform his or her old duties due to physical or health limitations, the employer must engage in a timely, good faith interactive process to determine if reasonable accommodation can be made for the employee. Such reasonable accommodation may involve assignment to other tasks that accommodate restrictions, job restructuring, offering part-time or modified work or reassignment to a vacant position, among others. In some instances, granting the employee an additional short-term extension of an approved leave so the employee can return to work may constitute reasonable accommodation.
After filing a work comp claim, the employee experiences an adverse employment action, such as demotion, decrease in pay, decrease of work hours, loss of benefits, assignment to unfavorable tasks, suspension, or even termination. Such actions contradict California law, which prohibits discrimination based on disability or medical condition.
The employer discourage employees from filing any claims as a result of their injuries at work. Such discouragement may be demonstrated when employers take adverse employment action against other injured or disabled workers by firing, demoting, or assigning these workers to unpleasant tasks.
The employer retaliates against the employee for filing a worker compensation claim or some other claim by withholding the payment of all the employee’s wages due on the last day of his or her employment, including accrued vacation and sick leave. The employer must immediately pay all compensation due to the employee. The employer has the obligation to make sure that the employee receives the payment and must get the employee’s consent to mail the paycheck.
Retaliation may be carried to the extreme as when the employer terminates the employee. The discharged employee who worked overtime hours must determine if he or she was paid for these hours. They must also inquire if other wages are owed, such as additional wages for meal and rest breaks that the employer did not provide.
Employees who have been seriously injured at work face difficult challenges, not the least of which is getting their health back so they can rejoin the workforce. For those who experienced any of the above situations, the results of the injuries has gone beyond the physical and may impact the employee’s continuing employment. It is better for these employees to consult with a knowledgeable and experienced attorney to explore their options.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.