Managing Employee Injuries and Disability and Occupational Safety

petition, and the WCAB affirmed. The WCAB noted that although there was no evidence that the applicant was terminated solely because he filed a claim, he was nonetheless penalized solely because he was absent due to the industrial injury. This, the Board concluded, violated Section 132a.

The California Supreme Court affirmed the decision. In summary, the court concluded:

 Section 132a prohibits an employer from types of discriminatory conduct which are not specifically enumerated in the statute (e.g. filing a claim, receiving a rating, award or settlement, etc.). Rather, the broad policy set forth in the statute that “there should not be discrimination against workers who are injured in the course and scope of their employment;”  The employer in this case discriminated against the employee because the evidence showed that it was not required under the labor contract to lay the employee off due to his absence from work. The undisputed evidence showed that the union and the company had consistently interpreted the contract as permitting the employer and the union to agree to extend seniority. The court noted that the employer made no effort to utilize its customary procedure of extending a leave of absence. It contrasted these facts with the situation in which the employer had made a bona fide attempt to extend seniority and the Union had refused to agree. Thus, the court agreed with the conclusion that the evidence did not show that the employer was compelled to terminate Maese’s seniority rights and in turn his employment.  The court rejected the argument of the employer that Maese’s loss of seniority was outside the scope of Section 132a’s protection as it did not constitute “discharge, or a threat to discharge.” Rather, the court concluded that the language in the statute, “in any manner discriminates against any employee,” was to be given a liberal interpretation and thus applied to Maese’s loss of seniority.  An employer is not required to retain all employees who sustain injuries on the job. Here, Maese, despite his industrial injury, remained competent to perform his job and his position was open upon his return. The law does not compel an employer to “ignore the realities of doing business by re- employing unqualified employees or employees for whom positions are no longer available.”

3. D ISCRIMINATION P ER S E , AND THE B USINESS R EALITIES D EFENSE

Two decisions of the California Court of Appeal have given further clarification and definition to the employer’s rights and obligations under Labor Code Section 132a.

In County of Santa Barbara v. WCAB , 53 the Court of Appeal dealt with the question of whether Section 132a prohibited acts which were detrimental to an employee, but which were based on

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