During a four month period, a Von’s Grocery Clerk was assaulted three times.
In one incident, he was punched in the face and pepper sprayed. In the second, someone tried stab him with a knife. In the third,, he was assaulted by a customer. The customer was possibly inebriated and allegedly harassed female shoppers. The man got in worker’s face when the employee went to get his manager and a security guard. The worker, as reported in the news, recounted the incident: “He’s[the customer was] cussing me out, he’s threatening my life.” “I back away, he comes back in my face. I back away again. The third time I defend myself, I push him off of me.” KGET
Vons reportedly terminated the Worker’s employment because he touched a customer. KGET
The Grocery clerk claimed he applied for worker’s compensation following the three assaults because he was having nightmares and panic attacks.
Upon his return to work from the last incident, the Employee noticed his hours had been cut, and he was suspended pending an investigation. Nine days later, the store terminated his employment because he touched a customer. KGET
If The Clerk Was Terminated, Can He Still Pursue His Work Injury Claims?
Yes. In California, Workers’ Compensation Claims do not end when employment is terminated. Injured Workers are permitted to pursue their claims post-employment. They remain eligible to receive both compensation and medical care post-termination
Can The Worker File A Discrimination/Wrongful Termination Through Workers’ Compensation?
Yes. In California Workers’ Compensation Law, Labor Code Section 132a provides that “(1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has file d or made know his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee’s compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits cause by the acts of the employer.”
In this instance, the fact pattern contained two allegations. One claim is for the hours being cut. The other allegation is for wrongful termination.
The Employer, in this instance, can raise a defense. Business necessity is recognized as a defense to LC 132a claims.
In this matter, the Employer alleges that the termination was due to the employee touching a customer. As such, the facts in the matter are in controversy. As such, a trier of fact, aka Workers’ Compensation Judge, would be the one to rule as to whether there was discrimination and as to whether there was a legitimate business necessity defense.
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 30 years. Contact us today for more information.