Fired After Filing Workers' Comp? Your Retaliation Rights in California

Labor Code 132a: Your Anti-Retaliation Shield

California Labor Code §132a is one of the strongest worker protection statutes in the country. It makes it a misdemeanor for any employer to discharge, threaten to discharge, or discriminate against any employee because the employee filed or intends to file a workers' compensation claim, or because the employee received a workers' compensation award.

The law is clear: your right to file a workers' comp claim is protected. An employer who punishes you for exercising that right faces serious legal consequences.

Who Is Protected

• Employees who file workers' comp claims
• Employees who intend to file claims (even if they have not yet)
• Employees who receive workers' comp awards or settlements
• Employees who testify or plan to testify in another worker's case
• Employees who report workplace safety hazards under Labor Code §6310

What Constitutes Retaliation

Retaliation is not limited to termination. California law recognizes many forms of employer punishment aimed at discouraging workers from exercising their rights:

Termination

The most obvious form. You file a claim, and suddenly you are fired. The employer may cite a pretextual reason -- "performance issues," "restructuring," or "attendance problems" -- but the timing reveals the true motivation.

Demotion

You return from medical leave and find yourself in a lower position, with less responsibility, lower pay, or reduced status. Even if the employer calls it a "reassignment" or "adjustment," a reduction in rank or compensation following a workers' comp claim can constitute retaliation.

Reduction in Hours or Pay

Your employer cuts your hours, eliminates overtime opportunities, or reduces your hourly rate after you file a claim. These economic punishments are designed to pressure you into dropping your claim or discouraging others from filing.

Schedule Changes

You previously worked a desirable shift, and after filing your claim, you are moved to nights, weekends, or a split shift. Schedule manipulation is a common retaliation tactic that makes your job so unpleasant you quit -- which the employer prefers over firing you.

Hostile Work Environment

After filing your claim, you experience:

• Cold treatment from supervisors who were previously friendly
• Exclusion from meetings, projects, or team activities
• Increased scrutiny of your work that other employees do not face
• Negative performance reviews that are suddenly worse than previous reviews
• Coworkers being told not to socialize with you
• Verbal harassment or comments about your injury or claim

Refusal to Accommodate Medical Restrictions

Your doctor provides work restrictions, and your employer refuses to accommodate them -- or claims there is no work available within your restrictions. While employers are not required to create new positions, they must make good-faith efforts to accommodate. A blanket refusal may constitute retaliation.

Constructive Termination

The employer makes working conditions so intolerable that you have no reasonable choice but to quit. This includes severe harassment, impossible assignments, or deliberately setting you up to fail. Under California law, constructive termination is treated the same as actual termination for retaliation purposes.

How to Document Retaliation

Documentation is the foundation of a successful retaliation case. Start building your evidence immediately if you suspect retaliation:

Create a Written Timeline

Document every retaliatory action with dates, times, locations, and the people involved. Include:

• The date you filed your workers' comp claim
• The date of each retaliatory action
• Who took the action (supervisor name, HR representative, etc.)
• Exactly what was said or done
• Who witnessed the action
• How the action differs from normal workplace practices

Save Everything in Writing

• Emails and texts: Screenshot and save all written communications related to your claim, discipline, schedule changes, or job status
• Performance reviews: Keep copies of all performance evaluations, especially those from before and after your claim
• Company policies: Obtain copies of the employee handbook, attendance policies, and disciplinary procedures
• Pay stubs: Document any changes in hours, pay rate, or overtime
• Schedules: Keep records of schedule changes before and after your claim

Identify Witnesses

Coworkers who witnessed retaliatory conduct -- comments from supervisors, changes in how you are treated, or similar treatment of other injured workers -- can be critical witnesses. Note their names but be discreet about your documentation efforts to avoid tipping off your employer.

Record Conversations (Carefully)

California is a two-party consent state, meaning you generally cannot secretly record conversations. However, you can take detailed notes immediately after conversations. Write down the date, time, who was present, and exactly what was said -- as close to verbatim as possible.

Remedies Available Under Labor Code 132a

If you prove retaliation, California law provides several powerful remedies:

Reinstatement

The Workers' Compensation Appeals Board (WCAB) can order your employer to restore you to your former position with the same pay, benefits, seniority, and working conditions. This is a remedy not available in most other employment lawsuits.

Back Pay and Lost Wages

You are entitled to compensation for all wages and benefits lost as a result of the retaliation, from the date of the retaliatory action through the date of reinstatement or resolution.

Increased Compensation (Up to $10,000)

Under Labor Code 132a, the WCAB can award up to $10,000 in increased compensation as a penalty against the employer. This is in addition to any back pay or other damages.

Costs and Expenses

You may recover reasonable costs and expenses incurred in pursuing your retaliation claim, including attorney fees in some circumstances.

Criminal Penalties

Labor Code 132a makes retaliation a misdemeanor offense. While criminal prosecution is rare, it is available in egregious cases and serves as a deterrent.

The 132a Petition Process

Filing a retaliation claim under Labor Code 132a is handled through the Workers' Compensation Appeals Board (WCAB), not civil court. Here is how the process works:

Filing the Petition

• Your attorney files a Labor Code 132a petition with the WCAB
• The petition must be filed within one year of the retaliatory act
• The petition identifies the retaliatory conduct and the relief sought

The Hearing

• A workers' compensation judge hears the case
• You must prove that the employer's action was motivated at least in part by your workers' comp claim
• The employer will offer alternative explanations for their actions
• Both sides present evidence, testimony, and legal arguments

Proving Your Case

You do not need to prove that retaliation was the sole reason for the employer's action. You must show that your workers' comp claim was a "contributing factor" in the adverse action. Evidence of timing, inconsistency, and pretext is critical.

The Employer's Burden

Once you establish a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for their action. Common defenses include:

• "The employee was terminated for performance reasons unrelated to the claim"
• "The position was eliminated as part of a reduction in force"
• "The employee violated company policy"
• "The employee could not be accommodated within the existing workforce"

Your attorney then has the opportunity to show that these reasons are pretextual -- that the real motivation was retaliation for filing a workers' comp claim.

Real-World Retaliation Scenarios

What to Do If You Suspect Retaliation

If you believe your employer is retaliating against you for filing a workers' comp claim, take these steps immediately:

1. Do not quit. Quitting can complicate your retaliation claim. If conditions are truly intolerable, consult an attorney before resigning so the resignation can be properly documented as constructive termination.
2. Start documenting immediately. Follow the documentation guidelines above. Every retaliatory action needs to be recorded with dates, times, witnesses, and details.
3. Request written explanations. If you are disciplined, demoted, or terminated, ask for the reason in writing. Email is best: "Can you please confirm in writing the reason for [action taken]?"
4. Do not sign anything. Do not sign a severance agreement, release, or resignation letter without having an attorney review it first.
5. File a complaint with HR. Put your retaliation complaint in writing to your employer's HR department. This creates a record and may trigger internal investigation.
6. Contact a workers' comp attorney. Retaliation claims have deadlines and require careful legal strategy. The sooner you involve an attorney, the stronger your case becomes.

Employer Tactics to Disguise Retaliation

Employers rarely admit to retaliation. Instead, they use strategies to make the adverse action appear legitimate. Recognizing these tactics helps you and your attorney build a stronger case:

"Paper Trail" Manufacturing

After you file a claim, management suddenly begins documenting minor infractions that were previously ignored. Verbal warnings become written warnings. Informal conversations become formal disciplinary actions. The employer builds a paper trail to justify a future termination that is actually motivated by your claim.

"Restructuring" or "Position Elimination"

Your employer claims your position was eliminated due to "restructuring" or "budget cuts." But no one else loses their job, and your duties are redistributed to other employees. This is a common way to disguise retaliatory termination as a legitimate business decision.

"Failed" Return-to-Work Programs

The employer offers "modified duty" that either violates your medical restrictions or is a meaningless assignment designed to make you quit. Alternatively, they claim no modified work is available, even though they accommodate non-injured employees for other reasons.

Pretextual Attendance Policies

Your medical appointments and treatment absences are counted against you under the attendance policy, even though they are legally protected under workers' compensation. The employer then terminates you for "excessive absences" -- absences caused by the very injury you filed a claim for.

Protecting Your Job While Your Claim Is Pending

Proactive steps can help protect your employment while your workers' comp claim is being processed:

• Follow all medical restrictions precisely. If your doctor says no lifting over 10 pounds, do not lift 11. Violating restrictions gives the employer a legitimate reason to take action.
• Attend all medical appointments. Notify your employer in advance and provide documentation. Missed appointments can be used against you.
• Maintain good work performance. If you are working modified duty, perform it to the best of your ability. Do not give the employer legitimate grounds for discipline.
• Communicate in writing. Put requests, concerns, and accommodation needs in email. Create a paper trail that supports your side of the story.
• Know your company's policies. Obtain and review the employee handbook, attendance policy, and disciplinary procedures. Follow them meticulously.
• Report retaliation to HR in writing. Even if you doubt HR will act, a written complaint creates a record and may trigger the employer's duty to investigate.

Statute of Limitations

Time limits apply to retaliation claims, and missing them can forfeit your rights:

• Labor Code 132a petition: Must be filed within one year of the discriminatory act
• Wrongful termination lawsuit: Generally two years from the date of termination
• FEHA disability discrimination: Must file with the Civil Rights Department (formerly DFEH) within three years
• Cal/OSHA retaliation complaint: Must be filed within six months of the retaliatory act

Do not wait. The closer you are to the retaliatory event when you take action, the stronger your evidence and the more credible your claim.

Frequently Asked Questions

The Emotional Impact of Retaliation

Beyond the financial harm, retaliation takes a severe emotional toll on injured workers. It is important to recognize these effects and address them:

• Fear and anxiety: Workers fear further punishment, making them reluctant to pursue their legitimate claim or attend medical appointments
• Depression: The combination of physical injury and workplace hostility creates a sense of helplessness that can develop into clinical depression
• Self-doubt: Workers begin questioning whether they should have filed the claim at all, which is exactly the employer's intended effect
• Financial stress: Lost wages from termination or reduced hours compound the financial pressure from the original injury
• Isolation: Former coworkers may distance themselves out of fear of their own positions, leaving the injured worker feeling alone

If you are experiencing these effects, know that they are normal responses to an abnormal situation. Seeking mental health support is appropriate and may itself be compensable as part of your workers' comp claim if the psychological distress is caused by the work injury and subsequent retaliation.