An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

for concluding that the employee could not return to work. The Board rejected the contention that the employer had some duty to keep his job open for him indefinitely. 1004 In Tucker v. WCAB , 1005 the employee was terminated for failing to phone in when he was going to be absent due to his industrial injury. A panel of the WCAB refused to apply the strict holding of Smith and concluded that the employer did not violate Section 132a. The Board noted that Tucker had previous disciplinary measures imposed on him for various rule infractions. Also, the employer had shown that it suffered substantial detriment by having to make expensive last-minute reassignments of other employees as a result of Tucker’s failure to call in. In another case, the WCAB dismissed an employee’s Section 132a claim when the employer had a reasonable good faith belief that the employee could not perform the duties of the position. 1006 In that case, the employee had sustained six work-related injuries over a period of three years. The employee’s physician said that he could be returned to work with certain restrictions. The employer refused to return the employee to work. The WCAB held that the employer acted reasonably when it initially refused to allow the employee to return to work without seeking further medical opinions in light of the employee’s undisputed history of pathological back problems with periods of disabling symptoms caused by work injuries.

(d) Other Situations To Which Section 132a Has Been Applied Section 132a has been applied in situations other than employee termination. For example, in Leamon v. WCAB, 1007 the employer had a rule whereby absences due to industrial injuries were not considered “unexcused” absences for purposes of computing whether an employee would be subject to later discipline for excessive absenteeism. The employer refused to correct the employee’s personnel records after it was apprised certain of the absences were due to the industrial injury. This conduct was held to violate Section 132a. It is interesting to note, however, that in the Leamon case, the employer’s initial action of terminating the employee for excessive absenteeism, when it did not know that some of the absences were work injury related, was held not to violate Section 132a. In Stremler v. WCAB , 1008 the California Court of Appeal rejected a claim that the California Department of Transportation’s safety incentive award program violated Section 132a. Cal- Trans had negotiated an agreement with the State employees’ union which provided a bonus to employees who did not have a lost-time work injury. An employee who did not receive the bonus claimed that this was discriminatory. The court rejected the employee’s claim, but on very narrow grounds. It concluded that the employer’s incentive program was discriminatory, but that because such programs were specifically authorized by statute, 1009 this specific statute prevailed over Section 132a. It is possible that a school may violate Section 132a if it unreasonably or unjustifiably refuses to provide an employee benefits which may be due to him or her. In Smith v. WCAB , supra , the

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