Anaheim, CA asked in Employment Law, Workers' Compensation and Employment Discrimination for California

Q: Fired while on probation for "no reason" in California while having a workers comp claim? Do I have a case?

I was on probation for 5 months. Got injured on the job and was out for 4 months. Came back to work for 10 days, and was fired for "no reason". I still have the workers comp claim and am no longer being paid. I never called out or had a bad thing said about me until I came back to work after my injury.

3 Lawyer Answers
Maya L. Serkova
Maya L. Serkova
Answered
  • Employment Law Lawyer
  • Orange, CA
  • Licensed in California

A: It is possible that the employer's conduct may have been unlawful here; however, more information needs to be known in order to fully understand your case. I suggest you consult with an employment law attorney who will further examine your situation and explain your options. Most employment law attorneys in California offer free of charge initial consultations, and thereafter may take your case on a contingency basis, meaning you do not have to pay attorney’s fees unless and until there is a positive outcome for you. They may also advance either all or partial costs of litigation.

You can look either on this site in the Find a Lawyer section or go to California Employment Layers Association (www.cela.org), an organization whose members are committed to representing employees’ rights.

Sincerely,

Maya L. Serkova

Neil Pedersen
Neil Pedersen
Answered
  • Employment Law Lawyer
  • Westminster, CA
  • Licensed in California

A: It is not always unlawful to terminate an employer while there is a pending workers compensation claim. However if it can be proved you were fired because you file a workers compensation claim, or because you had a disability that could have been accommodated, then you would have a meritorious legal claim. Therefore far more would need to be known about your situation before someone could give you solid advice about this.

It would be a good idea for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

Most employment attorneys who practice this area of law offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.

Good luck to you.

Nancy J. Wallace
Nancy J. Wallace
Answered
  • Workers' Compensation Lawyer
  • Grand Terrace, CA
  • Licensed in California

A: Yes...and no. Probation is the time when the employer just needs to see if you are a good fit. It may well be that you failed to pass probation because the supervisors will not permit any worker with any industrial injury to transition to permanent employment. Labor Code 132a says that no employer can discriminate against a worker just because he/she requested workers comp benefits. BUT YOU HAVE TO PROVE THE EMPLOYER'S MINDSET at the time. Proving what went on the in boss' brain is next to impossible. You really need witnesses in management who will testify against management that you were released because of the work injury. A memo with that is better still. In 33 years i've only prevailed on two; many have never tried even one. But it can be done. One worker was on the City Counsel Agenda to speak in Spanish and English on a Tuesday and she reported a work injury and was fired in a few hours 'for failing to pass probation"...and nobody could explain to the judge if she was failing why was she listed on the Agenda. If you have written evidence like this, where you are included in long-term projects and a team but then terminated the day after you report a work injury, that's worth pursuing 132a benefits.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.