Thursday, April 28, 2011

CA FEHA Challenges the Great Bargain

One of the most pervasive arguments I encounter when I opine about the irrelevancy of work comp is whether the employer would be open to litigation and further liability for on the job injuries.

I have always maintained that a) I never proposed eliminating the "exclusive remedy" but have only proposed eliminating duplicative medical coverage, and b) that the employer, certainly in California, has much more civil liability exposure than has ever existed since the advent of work comp, thus the protection of "exclusive remedy" is merely a modern day illusion.

Take for example the recent appellate court ruling in Cuiellette v. City of Los Angeles, No. B224303, 04/22/2011 (reported in WorkCompCentral 4/26/2011).

The California Fair Employment and Housing Act (FEHA) requires that employers perform certain tasks when presented with a disabled employee, known among FEHA cognoscenti as the "interactive process". Failure to do so subjects the employer to damages and attorney fees.

Many workers, in particular those who go through the workers' compensation litigation process, end up with legally defined disability under FEHA. Since there is no longer vocational rehabilitation in California (bite my tongue - one of those "be careful what you ask for" reform measures that the business sector demanded) there is no longer anyone looking out for the unwitting employer - ergo work comp produces almost naturally a FEHA trap.

In the Cuiellette case the employer, City of Los Angeles, got hit with $1.5 million in damages, and $1.2 million in attorney fees - a total of $2.7 million that the City will have to take from some other programs in this economically challenging time - for failure to engage the injured worker (a police officer injured in the line of duty) in the interactive process or to otherwise accommodate him with an open position which he could do. Perhaps this might be unfair, perhaps not - the jury was persuaded that the City failed to follow the law and made an award accordingly.

The point is that when there are large potential liabilities that may be incurred as the result of a work injury regardless of the work comp "exclusive remedy" rule, then how relevant does work comp become vis-a-vis protection from large jury awards? At least for California employers the trade off of "protection" for "compensation" seems to have experienced significant erosion, and ironically, it was the business lobby that brought this upon the state's employers.

So, if an employer is exposed to this kind of liability how can one say that work comp provides protection to the employer in the Great Bargain scheme?

No comments:

Post a Comment