Take the First Step
October 28, 2024 · Benjamin J. Treger
A Violation Most Employees Don’t Know About
You got hurt on the job. You did what you were supposed to do: reported the injury, saw a doctor, filed a workers’ compensation claim. You followed the rules.
Then your employer fired you.
If that sequence sounds like it should be illegal, that’s because it is. And if you assumed that workers’ comp was your only recourse, you are leaving significant money and legal protections on the table.
Workers’ compensation and wrongful termination are entirely different legal systems with different courts, different procedures, and different remedies. Understanding the distinction is critical to protecting your rights.
Workers’ compensation is a no-fault insurance system. It provides medical treatment for your injury and partial wage replacement while you recover. You don’t have to prove your employer did anything wrong; the injury just has to be work-related. In exchange for this guaranteed coverage, workers’ comp generally prevents you from suing your employer for negligence related to the injury itself.
But here’s what workers’ comp does not cover: it does not compensate you for being fired. It does not provide emotional distress damages. It does not award punitive damages. It does not pay your full lost wages going forward. And it does not hold your employer accountable for retaliating against you for exercising your right to file a claim.
A wrongful termination lawsuit provides all of those remedies. And filing a workers’ comp claim does not waive your right to bring one. These tracks are independent, and you can pursue both simultaneously.
Employers terminate employees after workers’ comp claims for reasons that make business sense to them but are flatly illegal. The injured employee is seen as a liability or a drain on productivity. The employer doesn’t want to deal with light-duty accommodations or schedule adjustments. The employer’s insurance premiums increased after the claim. Management resents the cost and disruption. Or the employer wants to send a message to other employees: don’t file claims.
None of these are lawful reasons to terminate someone. But employers rarely admit the real motive. Instead, the termination arrives dressed up as a “performance issue,” a “restructuring,” or an “attendance problem” caused by the very injury the employer is retaliating against. The pretext is designed to look neutral. An experienced attorney can see through it.
California Labor Code § 132a makes it illegal for any employer to discharge, threaten to discharge, or in any manner discriminate against an employee because the employee has filed or intends to file a workers’ compensation claim. It is classified as a misdemeanor. The remedies available through the Workers’ Compensation Appeals Board (WCAB) include reinstatement, reimbursement of lost wages and benefits from the date of the discriminatory action, and a penalty of up to $10,000.
This is a powerful provision, but it is not the only one. A § 132a claim is pursued through the WCAB, not civil court, and the remedies are more limited than what is available in a civil wrongful termination lawsuit.
In addition to a § 132a claim, you can bring a civil lawsuit for wrongful termination in violation of public policy. California has a strong public policy in favor of employees’ ability to file workers’ comp claims without fear of retaliation, and terminating someone for exercising that right violates that policy.
A civil wrongful termination claim provides access to damages that are not available through the WCAB: full lost wages (past and future, not the reduced workers’ comp rate), emotional distress damages for the anxiety, depression, and humiliation caused by the retaliatory termination, punitive damages if the employer acted with malice or oppression, and in some cases attorneys’ fees. These damages can be substantial, particularly for employees who were fired at a point in their career where the remaining earning potential was significant.
Retaliation cases are built on patterns and timelines. The most powerful evidence is often the sequence of events itself. You were a satisfactory or good employee. You were injured. You filed a claim. Your employer’s attitude changed. You were terminated. That sequence, standing alone, tells a story.
Additional evidence strengthens the case further: you had no documented performance issues before the injury, or your performance reviews were positive. The stated reason for termination is inconsistent with how other employees in similar situations were treated. The decision-maker who fired you was aware of the workers’ comp claim. The employer replaced you with someone who hadn’t filed a claim. The employer made comments about your injury, your absence, or the cost of the claim. The termination happened within weeks or months of the claim being filed.
When an injured employee returns to work with medical restrictions, the employer has an obligation to make reasonable efforts to accommodate those restrictions. This is true both under workers’ compensation law and under the Fair Employment and Housing Act (FEHA), which requires employers to engage in a good-faith interactive process to identify reasonable accommodations for employees with disabilities (including workplace injuries that create temporary or permanent limitations).
Some employers use the restrictions themselves as grounds for termination, arguing the employee “can’t perform the essential functions of the job.” But this argument frequently fails. If the employer never explored modified duties, alternative positions, or other accommodations, the employer has not satisfied its legal obligation. Terminating an employee without going through the interactive process is itself a FEHA violation, which adds another layer of claims and damages on top of the workers’ comp retaliation.
The time limits for filing claims vary depending on the legal theory. A § 132a claim must generally be filed within one year of the discriminatory act. A civil wrongful termination claim has a two-year statute of limitations. FEHA claims (failure to accommodate, disability discrimination) require a complaint to the Civil Rights Department within three years. The sooner you consult an attorney, the more options you will have.
If you were fired during or after a workers’ comp claim, document everything. Save any termination letter, the stated reasons, and any communications related to your injury, your claim, your medical restrictions, or your return to work. Write down the timeline while it’s fresh: when you were injured, when you filed, when your employer’s attitude shifted, and when you were terminated.
Then talk to an employment attorney. At Treger Legal, we evaluate workers’ comp retaliation cases on contingency. The consultation is free, and you owe nothing unless we recover for you.
This post is for informational purposes only and does not constitute legal advice. Consult with a qualified employment attorney about your specific situation.