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  1. #1
    Join Date
    Aug 2011
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    1

    Default Laid Off While on Worker's Comp

    My workers compensation claim was made in the State of: CA
    I have a worker compensation claim with my employer. I was recently laid off. I am the only employee to have been laid off and my employer (a city) has a 10 million dollar reserve fund and no budget deficit. They have made no other cuts to the city budget. What are my rights? How do I file a claim with the labor commission and what are the codes of regulation that pertain to this issue?

  2. #2
    Join Date
    Oct 2006
    Posts
    9,108

    Default Re: Laid Off While on Worker's Comp

    you can fie a discrimination complaint with the workers comp appeals board
    see I&A guide 7
    http://www.dir.ca.gov/dwc/iwguides.html
    here is the labor commission website
    http://www.dir.ca.gov/dlse/dlse.html

  3. #3
    Join Date
    Oct 1971
    Posts
    3,518

    Default Re: Laid Off While on Worker's Comp

    concernedworker
    I have a worker compensation claim with my employer. I was recently laid off.
    If you are still under restrictions and your employer fails to accommodate those restrictions for any reason, you are entitled to wage loss payments.
    If you don't receive anything from the IC in the next two weeks, contact a lawyer.
    If you are no longer under any restrictions, file for unemployment.

    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
    http://www.workerscompensationinsura...inks/index.htm

  4. #4
    Join Date
    Aug 2011
    Location
    Georgia
    Posts
    800

    Default Re: Laid Off While on Worker's Comp

    The simple answer is YES - you can be laid off while out on workers comp. BUT - there are some serious variables to consider whether the lay-off was PROPER or ILLEGAL. Now, before I go further, California may have more protective statutes, so what I'm about to say applies in general terms ONLY.

    Some key elements here are the REASONS for you having been laid off, and how many were laid off.

    If the ER laid you off BECAUSE you were out on WC, then it would be illegal and actionable. Since you were the only one laid off (as you indicated), one could easily conclude that it was BECAUSE you were on WC, but that might not actually be the case. You have to look at the totality of it. If you would have been laid off ANYWAY, absent the WC claim, then it would be PROPER and not actionable.

    For example, just because it was only one person laid off doesn't mean much in and of itself. It could be that the layoff measure only targeted one position, and you, because of seniority issues, position, time in service, etc., just happened to be the only reasonable candidate.

    Now, realistically, that would be, in my opinion, a bunch of hogwash, if the ER wanted to take that kind of defensive posture. From what you're saying, and I certainly can't dispute it, it appears to me to be the handwriting on the wall. While it might be a circumstantial perception of what happened, at first glance, I'd say you need to not take this lying down. Even IF on the outside chance the lay-off WAS legitimate, it certainly APPEARS to be something else. As they say, sometimes, appearance is everything. This looks like the perfect "human interest story" for the local media.

    "Injured Worker Terminated by City in Retaliation"

    Load your guns.

  5. #5
    Join Date
    Jul 2008
    Location
    California
    Posts
    1,898

    Default Re: Laid Off While on Worker's Comp

    Were you off of work due to your injury when they laid you off? Were you working with restrictions when they terminated you?

    Do you have a work comp attorney? If you do not I suggest you hire one. This may or may not qualify for adding a 132a claim with work comp. Again, not enough information given.

    You can contact a labor law attorney, regarding wrongful termination and discrimination. Again, I do not know your situation, or if this applies to you.

    You can contact the Department of Fair Housing and Employment and EEOC. There is a time limit to file a claim with them.

    Depending upon your injuries, you may or may not fall under state and federal ADA laws. This is unknown. If you do, you can contact a law firm who deals with ADA laws.

    This link has a lot of good information, that may or may not pertain to your situation.

    http://www.workerscompensationinsura...e-Accomodation

    This is a portion from the link above....

    "Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    The following LINKS provide information about "percieved impairments"/disability under Federal ADA and California State Laws, your rights to the "interactive process" and "reasonable accomdation" when released back to work, etc.


    MANY IW's are faced with problems from their Employer/Supervisor when released back to work with restrictions. SOME Employers will tell the IW that UNLESS they are "100%" able to perform their job, the can NOT return to work. OR, the Employer will tell the IW that because they are on "light duty" and/or NOT "100%", the IW will be TERMINATED.

    The ADA/DFEH and other States have LAWS to PROTECT ANY INDIVIDUAL, whether the "perceived impairment"/disability is Work-related or NOT!

    ALL IWs should READ AND LEARN ABOUT THEIR RIGHTS under FEDERAL AND STATE anti-discrimination laws!! Because there are STRICT TIME-FRAMES for filing potential discrimination complaints against an Employer, if you think that YOU are potentially being discriminated against by your Employer/Supervisor/co-workers, then you MUST consult with SEVERAL, EXPERIENCED Labor Law Attorneys, AND CONTACT your local EEOC/DFEH offices, AND, ANY and ALL FEDERAL and STATE AGENCIES that handle disability discrimination and labor law!!

    As with ANY law-suit, claim, etc, DOCUMENTATION IS CRITICAL!! IF you are being subjected to possible discrimination because you HAVE filed a WC claim, and/or BECAUSE you HAVE a "perceived impairment"/disability, then START A PRIVATE "DAILY JOURNAL".

    In your Daily Journal, DOCUMENT, the Date, time, location, name of ANY party at work making disparaging statements about your injury/impairment/work-restrictions/job performance, negative CONDUCT towards you, etc., and NAMES OF WITNESSES...

    SAVE ANY AND ALL letters, "memos", nasty of negative notes left on your desk regarding your attendance, performance, productivity, etc, copies of performance evaluations, etc, messages left on your work phone/home phone answering machine and so forth, from your Supervisor, HR, or ANYONE from work! Keep your "DAILY DIARY" in a SAFE PLACE, AWAY form "prying eyes", and do NOT DISCUSS either your WC claim OR YOUR THOUGHTS about possibley being discriminated against with ANY ONE AT WORK...

    UNLESS, problems with your wrok-restrictions are relevant. ADVISE ONLY your supervisor or HR, so that they can try to work out any conflict that you may have with the PARTIES INVOLVED. In other words, "keep your nose clean"

    If it DOES become necessary to involve a Labor Law Attorney and/or the EEOC and other relevant agencies, you will have DOCUMENTATION and the information that is NECESSARY in order for your comploaint to be INVESTIGATED....

    Here are the LINKS:

    FEDERAL ADA LAW: Applies to EVERYONE, not matter WHAT State you reside in...

    http://www.jan.wvu.edu/Erguide/Three.htm


    It is important that you read the entire web-site, and access the links WITHIN the web-site that direct you to additional information.

    For example, this link discusses "perceived impairment":

    2.2(c) Regarded as Substantially Limited
    This part of the definition protects people who are not substantially limited in a major life activity from discriminatory actions taken because they are perceived to have such a limitation. Such protection is necessary, because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments."

    The legislative history of the ADA indicates that Congress intended this part of the definition to protect people from a range of discriminatory actions based on "myths, fears and stereotypes" about disability, which occur even when a person does not have a substantially limiting impairment.

    An individual may be protected under this part of the definition in three circumstances:

    1. The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment.

    For example: An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled.

    2. The individual has an impairment that is substantially limiting because of attitudes of others toward the condition.

    For example: An experienced assistant manager of a convenience store who had a prominent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk, because he believed that customers and vendors would not want to look at this person. The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial limitation.

    3. The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.

    For example: An employer discharged an employee based on a rumor that the individual had HIV disease. This person did not have any impairment, but was treated as though she had a substantially limiting impairment.

    This part of the definition protects people who are "perceived" as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.

    Accordingly, if an employer makes an adverse employment decision based on unsubstantiated beliefs or fears that a person's perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition. [emphasis added]



    FOR CALIFORNIA RESIDENTS ONLY:
    http://www.jan.wvu.edu/Erguide/Three.htm

    http://www.rjop.com/publish29.html#1a

    Here is an example of WHAT the "interactive process" entails:

    2. Statutory Requirement To Engage in Timely, Good Faith, Interactive Process

    Prior to the passage of AB 2222, employers were required under the FEHA to make a reasonable accommodation for the known physical or mental disability of an applicant or employee, unless that accommodation produced undue hardship to the employer's operation. AB 2222 adds an additional statutory obligation for employers - - namely, to engage in a timely, good faith, interactive process with employees to determine effective reasonable accommodations, if any, when an applicant or employee with a known physical or mental disability or medical condition requests one. What does this mean to employers?

    It is now an unlawful employment practice for a California employer to fail to engage in this interactive process. Once the employer has notice that an employee is claiming a disability (even before a disability determination has been made), the employer must engage in a dialogue in a timely manner with the employee to determine what kind of a reasonable accommodation can be made. As evidence of compliance with the law, the employer should document this "interactive process" in writing. [emphasis added]


    By READING and LEARNING ABOUT THE ADA LAWS other STATE LAWS THAT APPLY REGARDING DISABILITY DISCRIMINATION, you will KNOW WHAT your RIGHTS REALLY ARE, what the EMPLOYER IS REQUIRED by LAW TO DO or NOT DO, and NOT just what your EMPLOYERS "SAYS" they are; and IF your Employer IS potentially VIOLATING YOUR RIGHTS UNDER ADA/Applicable STATE LAWS, and WHAT RECOURSE YOU MAY HAVE...
    Last edited by kelly38; 08-26-2011 at 05:42 PM.

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