Netflix’s layoffs upset the staffers who are now being fired. Some of them have gone to the internet platform Twitter to complain. Dailymail.com Do these individuals have workers’ compensation claims? Are they allowed to file them if they were laid off?
This article will discuss workers’ compensation injuries in the face of lay-offs. The Workers’ Compensation System has two important Labor Code provisions concerning post-termination claims.
Can Terminations Impact Work Injury Claims?
Yes. In California Workers’ Compensation, there are restrictions with respect to terminations filed after a layoff. Claims filed after lay-offs are often referred to as “post term” cases.
Can Terminations Impact Psychiatric Work Injuries?
Yes. A specific provision was made to address post-term psychiatric injuries. Beyond the regular requirements of bring forward a psychiatric injury, post-term employees are also required to address additional provisions.
Labor Code Section 3208.3(e) provides
“[w]here the claim for compensation is filed after notice of termination of employment or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury and one or more of the following conditions exist:
(1) Sudden and extraordinary events of employment were the cause of the injury.
(2) The employer has notice of the psychiatric injury under Chapter 2 (commencing with Section 5400) prior to the notice of termination or layoff.
(3) The employee’s medical records existing prior to notice of termination or layoff contain evidence of treatment of the psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411 or 5412, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
It is important to note that this section addresses injuries prior to the time of notice of termination or layoff. Therefore, something can happen post the notice that may give rise to a claim. For example, after the notice of termination, the employee physically assaulted by a co-worker.
What Happens If The Termination Never Happens?
The Labor Code 3208.3(g) provides “[a] notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this subdivision, and this subdivision shall not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this subdivision inapplicable to the employee.”
Thus, it is important that an employee understands and has documentation concerning the termination or layoff.
What Happens With If There Is A Physical Injury?
In the event of a non-psychiatric injury, i.e. orthopedic, Labor Code Section 3600(a)(10) applies.
(10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:
(A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.
(B) The employee’s medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.
(C) The date of injury, as specified in Section 5411, is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
(D) The date of injury, as specified in Section 5412, is subsequent to the date of the notice of termination or layoff.
For purposes of this paragraph, an employee provided notice pursuant to Sections 44948.5, 44949, 44951, 44955, 72411, 87740, and 87743 of the Education Code shall be considered to have been provided a notice of termination or layoff only upon a district’s final decision not to reemploy that person.
A notice of termination or layoff that is not followed within 60 days by that termination or layoff shall not be subject to the provisions of this paragraph, and this paragraph shall not apply until receipt of a later notice of termination or layoff. The issuance of frequent notices of termination or layoff to an employee shall be considered a bad faith personnel action and shall make this paragraph inapplicable to the employee.”
Note: This section is one for which there is some debate concerning. Thus, cases involving cumulative exposure or trauma may not be subject to this section. Consultation with an attorney with respect to that issue is recommended. Likewise, in the case of Netflix employees, it is important that they review this section to see if they fall within any of the exceptions.
What If I Need Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.
