• If you are found to be in violation of Labor Code section 132(a), you may be subject to financial penalties up to $10,000. You may also be required to reinstate the employee and reimburse them for lost benefits and wages.

The suits filed against employers under Labor Code section 132(a) alleging discrimination are quite numerous. The body of case law and the different fact patterns are immense. The cases have concerned fact patterns ranging from changing somebody’s work shift to night time, to termination for excessive tardiness, to a requirement to use sick time to attend medical appointments when the same requirement was not made of employees with non-work related injuries.

In Judson Steel Corp. v. WCAB, the California Supreme Court ruled that denying seniority rights to an employee who missed time from work due to his workers’ compensation claim violated Labor Code section 132(a), despite the company’s showing that the employee was treated no differently from other employees with nonindustrial injuries.

Employers bear the burden to produce evidence to show that the decision not to reinstate the employee was based on a legitimate “business necessity.” The California Supreme Court stated that the Labor Code’s provision “does not compel an employer to ignore the realities of doing business by re-employing unqualified employees or employees for whom positions are no longer available.”1

In Smith v. WCAB, the court ruled that employers cannot engage in conduct detrimental to the employee unless that conduct “is necessitated by the realities of doing business.”2

It is unlawful for employers to discriminate in hiring, firing or setting conditions of employment based on cannabis use off the job and away from the workplace — exemptions include building and construction workers, and applicants for, or employees in, positions requiring federal background checks or clearance.

The law prohibits hair, blood, urine or body fluid tests that screen for non-psychoactive cannabis metabolites that remain in a person’s system long after they use cannabis, but do not provide intoxication; the law instead requires employers to use tests that prove the person was impaired by THC, the psychoactive component in cannabis.3

An employee's personal bias that was made in good faith as part of bias mitigation training is not, by itself, unlawful discrimination.4

1. Judson Steel Corp. v. WCAB, 22 Cal. 3d 658 (1978)