California: WCAB Finds Section 132a Trumps a Collective Bargaining Agreement

How the WCAB resurrected 132a in a sick leave case

In Rivera v. County of Alameda, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s finding that the employer, the County of Alameda, violated Labor Code § 132a [LC 132a] by precluding the applicant, a juvenile institutional officer who suffered an industrial left knee injury on 10/17/2011, from using her accrued sick leave to supplement her temporary disability benefits or for medical appointments related to her industrial injury.

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The applicant showed that the employer’s Memorandum of Understanding governing the terms of her employment allowed non-industrially injured employees, but not those with industrial injuries, to use accrued sick leave as a supplement to income replacement scheme and for medical appointments.

Given the defendant’s practice regarding the use of sick leave, which forced the applicant to supplement her temporary disability benefits with accrued vacation hours and comp time instead of with accrued sick leave, the WCAB concluded that the applicant established a prima facie case of discrimination pursuant to Labor Code § 132a as required under Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831 [68 CCC 831], based on the detriment suffered by the applicant and the disparate treatment due to her industrial injury.

Moreover, the WCAB found that the defendant failed to demonstrate any reasonable or legitimate business reason for its practice regarding the use of accrued sick leave, and, as explained in Judson Steel Corporation v. W.C.A.B. (Maese) (1978) 22 Cal. 3d 658, 150 Cal. Rptr. 250, 586 P.2d 564, 43 Cal. Comp Cases 1205 [43 CCC 1205], that the employer may not defend a discriminatory practice proscribed by Labor Code § 132a based on the provisions of a collective bargaining or employment agreement.

Commentary:

The California Supreme Court decided Judson Steel in 1978. For many years, Judson Steel was the seminal case on Labor Code Section 132a violations. Pursuant to Judson Steel, if the injured worker could establish some sort of detriment by the employer, for example, the deprivation of some sort of work benefit, then the burden of proof shifted back to the employer to prove that the detrimental action was the consequence of a reasonable and legitimate business reason. This was referred to as the “business necessity” defense.

Using this analysis, the employer’s intent in taking the action against the employee was irrelevant. The employer’s intent could have been completely “neutral” and the injured employee could still prevail on a 132a claim. Indeed, there could have been no evidence that the employer was singling out the injured worker, or that the employer maintained any type of “discriminatory intent” against the injured worker, and the injured worker could still prevail on a 132a claim.

In 2003, the California Supreme Court then issued Lauher. Lauher essentially stood for the proposition that it was not going to be as easy to prevail on a 132a claim. The employee would have to establish not only some sort of detrimental action by the employer, but also that her or she was “singled out” as a result of the industrial injury. Subsequent to Lauher, the perception became “the 132a claim is dead, the injured worker now has to prove discriminatory intent!!”

As cases like Rivera establish, to paraphrase Mark Twain, the rumors of 132a’s demise have been greatly exaggerated. Contrary to popular opinion, Lauher did not make it impossible to win a 132a claim. Sure, Lauher added an element to the analysis, but this element already existed in most viable 132a claims anyways!

In conclusion, whether it is an employer not allowing an employee to use her sick leave as in Rivera, or any of the other varied ways in which employers discriminate against employees, discrimination does unfortunately occur. While there can be little question that proving these cases remains difficult,  it is important for practitioners to remember that the 132a claim remains a valid and important remedy for injured workers.

Read the Rivera noteworthy panel decision.

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