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Thread Title: Termination Of Employment After Injury
Created On Wednesday January 07, 2009 12:00 PM


jimcallahan37
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Wednesday January 07, 2009 12:00 PM

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Hi. First of all, I just wanted to mention my appreciation for this forum and all the great advice given. My question is concerning my employer's right to terminate me after my injury. It seems most people I speak with say that they are unable to do this. So, it seemed prudent to ask here. I had been off of work four and a half months when I received a letter stating that the company "has instituted a new policy requiring the termination of employment for an employee that is offwork for more than 12 weeks. You have been off work for more then that time so please accept this letter as the company's intent to terminate your employment." The company is based in Washington state and I was employed in California. Thanks for any advice.

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gaiassoul1@yahoo.com
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Wednesday January 07, 2009 1:24 PM

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Four months was deemed to be discriminatory in the case of NEC Electronics (PRICE) (WEAVER) 58 CCC 464, not sure if it is on point (has a similar fact pattern, but it sure looks like it from first glance). Refer your attorney to this case as he may be able to utilize it in his 132(a) pleading which you need to get filed immediately.

I also don't think the employer can apply a new disability policy retroactively to old workers' comp claims, I think they are stuck with the policy in effect at the time of your injury. I need to do more caselaw work on that one...but it is stuck in my brain somehwere that this tactic is also discriminatory. Your attorney can contact me if he can't find that case law.

-------------------------
 Ginger

To know how to say what others only know how to think is what makes men poets or sages; and to dare to say what others only dare to think makes men martyrs or
reformers - or both. Elizabeth Charles

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jimcallahan37
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Wednesday January 07, 2009 1:42 PM

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Well, I should first mention that I don't have an attorney as I have been going it alone. I began my case on 12/13/06 and this letter was 4/30/07 stating their policy will change 5/1/07 and that I will be terminated as of 5/15/07. So, obviously I've been a bit slow with this aspect of my case. I finally received a knee operation 11/07 and was released to work 10/08.

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STEVEPSCA@YAHOO.COM
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Wednesday January 07, 2009 5:04 PM

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'the company "has instituted a new policy requiring the termination of employment for an employee that is offwork for more than 12 weeks. You have been off work for more then that time so please accept this letter as the company's intent to terminate your employment."

ER's seem to take the stance that their internal policys' are sufficient to push federal, and/or state laws out of the way in their attempt to mitigate their exposure...or utilize their rights in a 'at will employment' arena.

What does your ER intend to do once you are released to RTW...?
Once you are determined P&S/MMI from your work related injury, LC 4658.2 has some requisites pertaining to your RTW and a 15% +/- application to your PD indemnity.
I know, your DOI excludes you from this, as well as possibly the size of your ER, and the 50 EE's provision...
But for discussion sake, as many other IW's read here as well... Just because your ER institutes a policy that might cover generalities... WC statutes may provide for something this ER is not anticipating....(?)

Other than that... you are kinda dragging yer feet here....(?)
You may be "SOL" on the SOL for filing a 132a, a that requirement is one year from the knowledge of the action. You have had this letter since April of 2007...yer gettin pretty close to TWO years on the 'knowledge'...

You might benefit from the information under ADA/EEOC rules...http://www.eeoc.gov/policy/docs/workcomp.html
Discrimination due to a disability OR a 'perceived disability' is still illegal, and subject to litigation.

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gaiassoul1@yahoo.com
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Wednesday January 07, 2009 5:11 PM

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you need an attorney, may be a bit too late on the 132(a) action, but you definitely have a FEHA claim....

whenever something happens in comp, you need to react quickly, dragging your feet is an understatement...most actions in law require a response within 6 months - one year, so dont drag your feet longer then that or you lose rights and you lose money.

-------------------------
 Ginger

To know how to say what others only know how to think is what makes men poets or sages; and to dare to say what others only dare to think makes men martyrs or
reformers - or both. Elizabeth Charles

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jimcallahan37
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Thursday January 08, 2009 12:34 PM

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I live in Upland, CA. Are there any attorneys that you might recommend to look over my case?

The letter stated that "once you have received a full duty work release, you are welcome to re-apply for employment for an open position with our company." I have contacted them, but because of the slow economy there are no open positions available. I should mention that I had an excellent work record before the injury, so I wouldn't expect for them to use this as an excuse to let me go or not rehire me.
Other than the fact that I've been without health insurance since then and they aren't rehiring me, I have found it difficult to explain to prospective employers that I was terminated from my previous employer.

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STEVEPSCA@YAHOO.COM
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Thursday January 08, 2009 4:56 PM

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'The letter stated that "once you have received a full duty work release, you are welcome to re-apply for employment for an open position with our company."

That's the part where ER's get in trouble... while the ER may have an internal policy requiring a "full release' for RTW... federal laws would supercede that policy.
The ER is required under ADA/EEOC rules to engage in the 'interactive process', as well as Calif statute, and make the reasonable accommodation to bring you back to work...OR show a financial hardship for the inability to do so.

IF you suffered a work related injury, treated to the injury, with or with out benefit of TTD, and returned to work w/o restrictions...little to no PD... your job, or a job, should be there for you...as the 'system' had worked, and you are STILL an employEE of this company.

While Calif is an 'at will' employment state, and the ER is free to make 'business decisions' as they see fit to fulfill their stated business plan...there are statutes within the WC labor code that serve to protect the interests of the EE/IW, and a successful RTW.

Don't let the time frames lapse here... it's up to you to pursue this issue.
You can begin with a 132a filing, IF you are within the one year SOL from knowledge of the discriminatory action of the ER.

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