Can my employer cut my hours after I file a workers' comp claim?

It’s illegal in most states, including California, to retaliate against employees for filing a workers’ comp claim.

Question:

I’m a dishwasher at a restaurant in California. A few months ago, I slipped and fell in the kitchen and injured my shoulder. At the time, I took a few weeks off work and got treatment. My doctor said I could return to work and see how things went with my shoulder. So far, my shoulder has been okay, but I’ve noticed that my supervisor’s attitude towards me has changed. I think he’s upset that I filed a workers’ comp claim. A few days ago, out of nowhere, he told me that my hours were being cut in half. I’ve always performed well at work, and I don’t think anyone else’s hours are being cut. Can my employer do this?

Answer:

In California, like in most states, it’s illegal for an employer to retaliate against an employee for filing a workers’ comp claim. Employers cannot fire, threaten to fire, discipline, or otherwise discriminate against employees because they’ve applied for workers’ comp benefits. At the same time, however, employers may continue to run their businesses and take personnel actions based on legitimate business reasons.

The key question is why your employer is cutting your hours: for a legitimate business reason or in retaliation for your workers’ comp claim. If you were having performance problems at work before your injuries, or if the company was cutting back hours for other dishwashers, that might be evidence that your employer is acting for legitimate reasons. But if you haven’t had performance issues and you’re the only one whose hours are being reduced, it starts to look like you’re being singled out because you applied for workers’ comp.

If you can prove that your employer is actually retaliating against you, California law allows you to collect a significant penalty: Your workers’ comp benefits will be increased by 50%, up to a maximum of $10,000. You may also receive reimbursement for the wages you lost as a result of the reduction in hours, as well as up to $250 for the costs of pursuing your retaliation claim. Finally, your employer will most likely have to give you back your normal work hours, and it could face criminal charges. (Cal. Labor Code § 132a (2018).)

Because the legal penalties for retaliation can be expensive, your employer and its insurance company will no doubt do everything they can to prove that your supervisor had a legitimate business reason to cut your hours. So now would be a good time to speak with a workers’ comp lawyer, if you haven't already done so. An attorney who’s experienced in this area of the law can look at your situation, determine whether there’s evidence of retaliation, and help you gather the kind of proof needed to support your claim.

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