Viability of Wrongful Termination In Violation of Public Policy Claims Based on Labor Code Section 132a

By Adams, Nye, Becht LLP
on June 27, 2013

b20nature_characters_humanoids022.jpgIn California, employees who are fired used to be able to bring a wrongful termination in violation of public policy action under Labor Code Section 132a against their employers. Labor Code Section 132a protects employees from being retaliated against for filing or intending to file worker's compensation claims against their employers. After a recent California court of appeals decision, Dutra v. Mercy Medical Center, wrongful termination claims may not be viable in court based on Section 132a

Michelle Dutra injured her back and was subsequently terminated from her job less than two months later after her injury. Ms. Dutra then sued her employer, claiming that she had been terminated in violation of public policy for filing a worker's compensation claim. The trial court dismissed the wrongful termination case since it determined the Worker Compensation Appeals Board (WCAB) has exclusive jurisdiction for claims under Section 132a though it permitted plaintiff an opportunity to amend her complaint.

So what's the problem with the WCAB determinng wrongful termination in violation of public policy claims based on Section 132a? The WCAB provides workers a streamlined, no-fault way to determine the extent of their claim for work-place injuries and compensation without delving into liability, or any other common law defenses that are typically available in litigation. The reasoning is that these work-place injury claims would be quickly resolved under the WCAB's no-fault system. But the remedies available under the WCAB severely limit employees' ability to recover damages. For examples, employees filing Section 132 a claims cannot claim future wage loss and are only able to recover up to $10,000 in penalties for back pay! Also, attorney fees are unavailable under Section 132a claims.

In Dutra, the Appeals court affirmed the trial court's decision. Here's the court's reasoning: First, relying on City of Moorepark v. Superior Court, the Dutra court stated that allowing plaintiffs to pursue common law tort claims based on Section 132a would provide the plaintiff broader remedies than Section 132a allows. In other words, if the public policy that supports the wrongful termination claim has limitations such as requiring specific procedures and narrower remedies, then allowing plaintiff to pursue the tort claim will enlarge the remedies and procedures provided by statute. Second, although City of Moorepark did allow a plaintiff to pursue common law wrongful termination remedies, in Dutra, plaintiff failed to avail her of those other remedies refusing to amend her complaint.

Despite the court's reasoning, the decision should have little impact in how employees pursue wrongful termination cases in violation of public policy. Remember City of Moorepark provided that a plaintiff could still pursue remedies under the California Fair Employment and Housing Act (FEHA). So employees should still bring claims under the FEHA for disability claims if their injuries arise to the definition of disability or perceived disability under FEHA. Also, workers fired for filing worker's comp claims can bring wrongful termination claims based on the California constitution (Article XIV, section 4), which provides employees access to a workers compensation system. Whether or not Section 132a may be the basis for wrongful termination in violation of public policy claims will need to be tested with other cases in light of Dutra.

A more concrete fix to ensure workers who complain about their workplace injuries are not subject to retaliation and termination is for the legislature to step in and amend Section 132a. If the legislature amends Section 132a to allow for civil actions and clarifies that statutory remedies under Section 132a are in addition to common law remedies, this will resolve any ambiguities created by Dutra. In addition, attorney fees should also be allowed for civil actions brought under Section 132a so that workers may be able to retain attorneys to pursue their claims in court. With these basic changes at the very least employees who are terminated or discriminated as a result of filing a worker's compensation claims will be able to make sure that they have a fair avenue to vindicate their rights.