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California~ Workers Comp retaliation

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  • California~ Workers Comp retaliation

    New to the forum so I will try to elaborate my situation as best as possible.

    Background, I've been working for a family owned buisness for the last 11 years. Originally hired as a laborer/driver my work schedule M-F 7-4 with seasonal OT required. Hired at the age of 32 I quickly moved up the ladder by year 4 with the company I was given a title of field manager in name only, as I was still required to do the same labor intensive duties required as when I was originally hired.

    Over my time with the company I have amassed 5 WC claims 4 active and 1 closed (18% permanent rating) the 4 active include a double hernia(surgery required) 2 head traumas and the most recent a shoulder injury which I recieved a slap repair for on 4/1.

    Upon returning to modified duty on 4/14 I was informed my work schedule would be changed PERMANENTLY to include working weekends with an hourly cut from 40 to 38 hours with no available OT.

    I believe this to be in retaliation for my shoulder surgery being done at the begining of the companies busy season leaving the company scrambling to fill my position. I was upfront and let them know through the entire process leading up to my surgery they just failed to prepare and now I get the screwed schedule and loss of hours and potential OT. I'm a non confrontational individual by nature but I'm also at my wits end any suggestions would be appreciated and thanks in advance.

  • #2
    Did you return to work full duty or with restrictions? If it was with restrictions could that be the reason for your shift change and lack of OT?

    Comment


    • #3
      Originally posted by HRinMA View Post
      Did you return to work full duty or with restrictions? If it was with restrictions could that be the reason for your shift change and lack of OT?
      It is with restrictions but my employer has let me know that the schedule change will be permanent even after the restrictions are lifted.

      Comment


      • #4
        Rather than assuming it is because of your injury, have you asked why the change? Could be the economy or other business changes.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

        Comment


        • #5
          If you want to pursue a harrassment/discrimination claim under labor code section 132(a), http://www.leginfo.ca.gov/cgi-bin/di...file=110-139.6 you do that with the WCAB... best to have an attorney rep you in this claim. Go to www.caaa.org for names in your zip code.
          Keep in mind however, the burden of proof is on you...your ER does not have to prove they did not discriminate...you have to prove they did. If all other employEE's are subject to the same, or similar shift changes... you have a difficult claim to prove.
          Upon returning to modified duty on 4/14 I was informed my work schedule would be changed PERMANENTLY to include working weekends with an hourly cut from 40 to 38 hours with no available OT.
          If you have not been declared MMI/Maximum Medical Improvement has been reached...your employER is under NO obligation to provide light duty/modified work... with or without restrictions.
          If you are sustaining wage loss while on modified work, you could be eligible for TPD/Temp Partial Disability benefits.

          Your ER may make business decisions that affect your work schedule at any time... without notice, including termination.

          Within 60 days of your Dr declaring you MMI, your ER must address a valid job offer...must be expected to last at least a year, and pay within 85% of your AWW/Average Weekly Wage.

          As you do have several claims at this time... IMO... you should definately be consulting with a attorney.

          Comment


          • #6
            Originally posted by ElleMD View Post
            Rather than assuming it is because of your injury, have you asked why the change? Could be the economy or other business changes.
            So in the background I left out something, after they gave me the field manager title the owners highschool buddy came looking for a job so the owner created a spot and gave it to him, now the owner and the general manager called me back and assured me that I was on the radar for the newly created Ast manager spot but just not now they needed me out in the field and they had me in there long term plans, so it was no big deal because I'm a worker its what I like to do.

            2 or 3 years pass and so does the owners buddy the ast manager he had hired from a stroke. For the next 4 years I'm in the field and handling *ast manager duties pay goes up no title change its just known by all 15-20 employees who the boss is.

            1 year later another unemployed buddy shows up last year needing work and guess what its about 1 year and a shoulder injury later and here I am being told by the new Ast manager I need to change to weekends, and asking for advice on a message board it just seems that there plan was to work me till they broke me and then force me out idk.
            Last edited by 56LightsOut56; 05-03-2012, 11:31 AM. Reason: assistant

            Comment


            • #7
              Originally posted by CAIW View Post
              If you want to pursue a harrassment/discrimination claim under labor code section 132(a), http://www.leginfo.ca.gov/cgi-bin/di...file=110-139.6 you do that with the WCAB... best to have an attorney rep you in this claim. Go to www.caaa.org for names in your zip code.
              Keep in mind however, the burden of proof is on you...your ER does not have to prove they did not discriminate...you have to prove they did. If all other employEE's are subject to the same, or similar shift changes... you have a difficult claim to prove.

              If you have not been declared MMI/Maximum Medical Improvement has been reached...your employER is under NO obligation to provide light duty/modified work... with or without restrictions.
              If you are sustaining wage loss while on modified work, you could be eligible for TPD/Temp Partial Disability benefits.

              Your ER may make business decisions that affect your work schedule at any time... without notice, including termination.

              Within 60 days of your Dr declaring you MMI, your ER must address a valid job offer...must be expected to last at least a year, and pay within 85% of your AWW/Average Weekly Wage.

              As you do have several claims at this time... IMO... you should definately be consulting with a attorney.
              Thanks for the info

              Comment


              • #8
                So in the background I left out something...etc etc...
                Sorry... but those issues you are upset over...have absolutely nothing to do with your workers compensation claim. Nothing.
                Nor is there basis for harrassment/discrimination claim here...IMHO.


                Your ER makes the decisions on who to hire...terminate, change shifts, change work assignments. Those are all business decisions... few if any employees are included in those decisions.
                You go to work, take your paycheck home...and do as you please in your time.
                I know these are not the answers you want to hear, but that's the way it is. Often referred to as "life".

                Comment


                • #9
                  Originally posted by CAIW View Post
                  Sorry... but those issues you are upset over...have absolutely nothing to do with your workers compensation claim. Nothing.
                  Nor is there basis for harrassment/discrimination claim here...IMHO.


                  Your ER makes the decisions on who to hire...terminate, change shifts, change work assignments. Those are all business decisions... few if any employees are included in those decisions.
                  You go to work, take your paycheck home...and do as you please in your time.
                  I know these are not the answers you want to hear, but that's the way it is. Often referred to as "life".
                  I'm sure your right, it just seems magnified in a family owned buisness where of the 20 employees 8 are family members including the owners. It just feels as if their was some level of discrimination/retaliation involved, but that is life and your right.

                  I guess it is as I like to say. " Well I was looking for a job when I found this one" type deals and that its time to just move on, of course I will probably have to ride out the 6 months to a year my Dr. says it will take to get full range of motion back because I dont think theres a big market for laborers with only 1 wing.

                  Thanks again for your help. If you have the time what is a ER?
                  Last edited by 56LightsOut56; 05-03-2012, 12:25 PM.

                  Comment


                  • #10
                    ER is an abbreviation for EmployeR.
                    I am not an attorney, and don't play one on TV. Any information given is a description only and should be verified by your attorney.

                    Comment


                    • #11
                      This thread can be closed.

                      Thanks, this thread can be closed.

                      Comment


                      • #12
                        Originally posted by 56LightsOut56 View Post
                        I'm sure your right, it just seems magnified in a family owned buisness where of the 20 employees 8 are family members including the owners. It just feels as if their was some level of discrimination/retaliation involved, but that is life and your right.

                        I guess it is as I like to say. " Well I was looking for a job when I found this one" type deals and that its time to just move on, of course I will probably have to ride out the 6 months to a year my Dr. says it will take to get full range of motion back because I dont think theres a big market for laborers with only 1 wing.

                        Thanks again for your help. If you have the time what is a ER?
                        That isn't discrimination or retaliation, it is just one of the benefits to owning your own business. If you are the owner you get to decide who you work with and if you want to work with friends and family, you can do so.
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                        Comment

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