Fired for a Workers' Comp Claim?

An injured construction worker may worry that reporting the injury will cost them the job. On many projects crews are put together job by job, and a foreman's choice about who gets called back can feel impossible to challenge. The FAQ on our construction site injuries page notes that workers have legal protection against retaliation; this guide explains what that protection is, where a claim goes, and how fast it has to be filed.

Two different laws are involved. One protects workers who file workers' comp claims. The other protects workers who complain about safety or report an injury to the safety agency. They are filed in different places, so the first step is knowing which one fits.

How does a retaliation claim work, step by step?

Report the injury and file the claim. Written notice and the claim form start the comp case; our guide on the first week after a construction injury covers both.
Write down what happens next. A firing, a threat, a demotion, fewer hours, or being left off the next crew: note the date, who said what, and who heard it.
Match the action to the law. Retaliation for filing or announcing a comp claim falls under Labor Code 132a, which belongs to the Workers' Compensation Appeals Board alone. Retaliation for a safety complaint or for reporting a work injury to the safety agency falls under Labor Code 6310, and those complaints go to the Labor Commissioner. Labor Code 6310(a)(4) itself sends comp claim retaliation to the appeals board.
File a section 132a petition within one year. Proceedings are started by filing a petition with the appeals board, no more than one year after the discriminatory act or the date of termination (Labor Code 132a).
File a Labor Commissioner complaint within one year, if section 6310 applies. A person who believes they were discharged or discriminated against in violation of a law the Labor Commissioner enforces may file within one year, and the period may be extended for good cause (Labor Code 98.7).
The case is investigated or heard. A Labor Commissioner complaint is assigned to a discrimination complaint investigator (Labor Code 98.7). A section 132a petition is decided by the appeals board, which has full power to try and determine it, subject to judicial review.
Remedies are ordered if the claim is proven. The table below sets them out.

Which law covers what, and where is it filed?

Law	What it protects	Where to file	Deadline	Remedy
Labor Code 132a	Filing or announcing a comp claim or application; receiving a rating, award or settlement; testifying in a coworker's comp case	Petition to the Workers' Compensation Appeals Board	One year from the discriminatory act or termination	For a claim: compensation increased by one-half, up to $10,000, plus up to $250 in costs, with reinstatement and lost wages and work benefits. For testifying: reinstatement and lost wages and work benefits
Labor Code 6310	Safety complaints to Cal/OSHA, another agency, the employer or a representative; reporting a work injury; safety committee work	Labor Commissioner complaint	One year, extendable for good cause (Labor Code 98.7)	Reinstatement and lost wages and work benefits
Labor Code 6311	Refusing work that would violate a safety order and create a real and apparent hazard	Right of action for wages	Not stated in the section	Wages for the time without work

What counts as discrimination under section 132a?

The statute begins with a policy statement: there should not be discrimination against workers injured in the course and scope of their employment. It then covers an employer that discharges, threatens to discharge, or "in any manner discriminates" against an employee because the employee filed or made known an intention to file a claim with the employer or an application for adjudication, or because the employee received a rating, award or settlement. A threat counts, not only a firing.

The same section reaches an insurer that advises, directs or threatens an employer to fire a worker for filing a claim, and an employer that retaliates against a worker for testifying in another employee's case before the appeals board. Each of these is a misdemeanor, and the statute says a worker may report suspected criminal violations to the Division of Labor Standards Enforcement or directly to the public prosecutor (Labor Code 132a).

What the statute targets is action taken because of the claim. Useful evidence includes the timing of the action, what was said and by whom, and how other workers on the same crew were treated.

What if I complained about safety, not just the injury?

Labor Code 6310 protects a worker who made an oral or written complaint about safety to the division, another agency with safety responsibility, the employer, or the worker's representative; who started or testified in a proceeding about those rights; who served on a safety committee; or who reported a work-related injury, illness or death. A worker discharged, threatened, demoted or suspended for a good-faith safety complaint is entitled to reinstatement and reimbursement of lost wages and work benefits (Labor Code 6310(b)).

One detail matters on construction sites: for this section, "employer" includes the employers listed in the multiemployer rule of Labor Code 6400(b), such as the controlling employer responsible for safety on the site (Labor Code 6310(d)). That can include a general contractor. How Cal/OSHA's employer categories work is explained in our guide on Cal/OSHA citations and injury cases.

Separately, no employee may be laid off or discharged for refusing to perform work that would violate a safety order where the violation would create a real and apparent hazard to the employee or coworkers, and a worker who loses pay for that refusal has a right of action for the wages (Labor Code 6311).

Where are these claims handled in Sonoma County?

A section 132a petition is part of the workers' comp system. The Division of Workers' Compensation's Santa Rosa district office is at 50 D Street, Room 420, Santa Rosa, and its Information and Assistance Unit can be reached at (707) 576-2452. Our Santa Rosa injury guide describes that office's units and free workshops.

A retaliation complaint under Labor Code 6310 is filed with the Labor Commissioner's Office, which accepts retaliation complaints from employees, former employees and job applicants. Its retaliation page says it will not question a worker's immigration status or report it to other agencies, and that no Social Security number or photo identification is needed to file.

What changes the answer?

The project ended and the whole crew was let go. Section 132a reaches action taken because of a claim. If every worker on the job was laid off at the same time for the same reason, the claim depends on whether anything shows the injured worker was treated differently.

The insurer pushed for the firing. An insurer that threatens an employer with cancellation or a higher premium to get a worker fired for a claim commits a misdemeanor and is subject to the same increased compensation (Labor Code 132a(2)).

You were fired for testifying for a coworker. Retaliation for testifying, or announcing you will testify, in another employee's comp case brings reinstatement and lost wages and benefits (Labor Code 132a(3)).

You missed the Labor Commissioner deadline. The one-year period may be extended for good cause (Labor Code 98.7), and the Labor Commissioner's page says a private lawsuit may be possible instead if the deadline is missed.

Someone other than your employer caused the injury. A retaliation claim does not replace a claim against a general contractor, owner or equipment company (Labor Code 3852). See when a general contractor or owner is responsible. For falls, read our guide on who is responsible for a scaffold, ladder or roof fall.

What could this look like? An example

For example, imagine a carpenter employed by a framing subcontractor on a housing project in Petaluma. He injures his shoulder, gives written notice, and returns the claim form. Two weeks later his foreman tells him, in front of another carpenter, that "guys who file claims don't get called back," and he is left off the crew for the company's next project while workers with less seniority are called.

He writes down the date, the words and the witness. Within the year, with help from the Information and Assistance Unit, he files a section 132a petition with the appeals board. A month before the injury he had also emailed the general contractor's safety manager about a missing guardrail; if he believes that complaint played a part, a Labor Commissioner complaint under section 6310 is a separate filing with its own one-year deadline. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do workers make about retaliation?

Not reporting an injury at all out of fear, which puts the 30-day written notice deadline at risk.
Filing in the wrong place: comp claim retaliation goes to the appeals board, not the Labor Commissioner.
Waiting more than a year after the firing or the threat.
Relying on memory instead of writing down the date, the words, and who heard them.
Assuming a threat does not count because no one was actually fired.

What should I do this week?

Write a dated note of every comment, threat or change in your hours or assignments since the injury.
Save texts, emails, schedules and pay stubs that show your work before and after the claim.
List coworkers who heard what was said and how others on the crew were treated.
Call the DWC Information and Assistance Unit in Santa Rosa about a section 132a petition.
If the retaliation followed a safety complaint, prepare a Labor Commissioner complaint.
Keep track of your other deadlines with our guide to California personal injury deadlines.

Frequently asked questions

Is a threat to fire me enough for a claim?

Yes. Section 132a covers an employer that threatens to discharge a worker because of a claim, not only one that actually fires the worker.

Can I file with the Labor Commissioner for comp claim retaliation?

Not under section 6310. That section states that retaliation for filing or announcing a workers' comp claim is under the exclusive jurisdiction of the Workers' Compensation Appeals Board (Labor Code 6310(a)(4)).

Is the extra compensation unlimited?

No. Under section 132a, compensation is increased by one-half, but not more than $10,000, plus costs and expenses of no more than $250, in addition to reinstatement and lost wages and work benefits.

Does a retaliation claim affect my claim against the other driver or company?

No. They are separate. If you were hurt in a vehicle while working, see workers' comp and a claim against the other driver. If you fell at a workplace someone else controls, see a fall at work and a premises claim.

Will the Labor Commissioner ask about my immigration status?

Its retaliation complaint page says the office will not question employees' immigration status or report it to other government agencies.

If you were threatened, demoted or let go after reporting a construction injury, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation about your injury claim.

Can I be fired for filing a workers' comp claim after a construction injury?