Friday, December 9, 2022

Documenting Poor Performance Useful in Discrimination Claim Defense

DanaLeisingerWe have a seasonal employee we have rehired every year for the past few years. He had a workers’ compensation claim last year but now he’s ready to come back. Unfortunately, his performance wasn’t great last year, yet nothing was said to him. Do we have to rehire him?

It is wise to be concerned about liability in this situation, since California Labor Code Section 132a states it’s illegal to discriminate against an employee who files a workers’ compensation claim. Termination, of course, would be the ultimate form of discrimination.

Discrimination Liability

If it is found that an employer has indeed discriminated against an employee due to the employee’s claim, the employer can be held liable for a number of remedies, including increased compensation, costs and expenses, and reimbursement for lost wages and work benefits.

Additionally, defending a 132a claim is outside the scope of workers’ compensation insurance coverage. So while your carrier will defend the underlying claim, an employer must hire independent counsel to defend the 132a.

In this situation, the employer doesn’t wish to terminate the worker due to the claim, but for poor performance. However, nothing was said to the employee, and the personnel file has no documentation of the poor performance, leading to an implication that the termination does in fact stem from the claim.

This type of situation points out the importance of progressive discipline. When an employer disciplines an employee, with oral and written warnings, it helps to disprove any claim of discrimination, be it a 132a claim as in this instance, or any other form of discrimination.


An employee is not absolutely “bulletproof” from termination when filing a workers’ compensation claim, but there definitely is a heightened sense of protection, and therefore the personnel file should be well-documented with numerous warnings before proceeding with termination.

The well-documented file shifts the burden back to the employee to prove that the termination is based on the workers’ compensation claim (or any other type of illegal discrimination) and not the poor performance.

It is advisable to seek legal counsel when terminating an employee currently on workers’ compensation or who has returned recently from making a claim.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at

Staff Contact: Dana Leisinger

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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