Legal Question in Workers Comp in California
I have an employee who filed a Worker's Comp Case in January, 2011. It's been a year, and the employee is possibly going to be released back to work in a month or two. Given that the business climate in our industry has changed, are we required to bring back the employee at the same pay rate and hours? The economy has affected our business, and it looks like a 40 hour / full-time pay scale for this employee now is not financially possible due to the economy. For example, we would offer minimum wage and a maximum of 8 hours per week for the employee's position. Is this possible, or does the State of California Worker's Compensation require us to bring back the employee at the same pay rate/hours prior to the alleged injury? Thanks.
2 Answers from Attorneys
You should speak with your WC insurance carrier as you will get free legal advice from their attorney. If you are not discriminating against the employee because of their injury but rather are acting based upon the business' economic needs, you do not need to rehire the person .
IF YOU CANNOT offer a position EXACTLY MATCHING the workers' permanent Work Restrictions, you (1) notify the Insurer you have no openings matching that workers' permanent physical restrictions and (2) notify the employee you have no openings that match the workers' new physical limits but will let them know when you do.
IF YOUR WORKER IS RELEASED TO FULL DUTY WITH NO RESTRICTIONS, offering a cut-wage post would result in ME suing you for violation of Labor Code 132a. I would sue you, and the insurer may not provide representation because a violation of LC 132a is a mjisdemeanor crime (and there is no insurance for committing crimes).
YOU WOULD HAVE TO answer the 132a petition, and offer the "Business Necessity" defense and PROVE (opening your books and financial situation in discover and at trial) that you cannot possibly afford to let this worker return to the pre-injury job.
SO GET YOUR FINANCIAL STATEMENTS IN ORDER AND GET READY TO PROVE YOU CAN'T AFFORD TO BRING BACK THIS GUY at his pre-injury rate and hours. [REMEMBER: this only applies if this worker is released to full duty, no work restrictions.)
Did you lay off non-injured workers? Did you cut back wage rates and hours of non-injured workers? If not, cutting the rate or hours of the injured worker will likely be found by a Workers' Comp judge to be a violation of Labor Code 132a.
CHECK WITH THE INSURANCE ADJUSTER to see if the Insurance Company's practice is to let their Defense Attorney answer the 132a complaint and defense the 132a charges... if so, you won't have to hire your own attorney. Some do, most don't.
I charge a $900 retainer and $900 up front for 3 hours in advance to defend employers such as yourself for violations of Labor Code 132a... IT'S EXPENSIVE TO CUT INJURED WORKERS.
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