A recent California Court of Appeal opinion reminds employers of the need to carefully monitor parallel workers’ compensation proceedings involving litigants who also have civil claims pending against the employer. Ly v. County of Fresno, 2017 WL 4546059 (Cal. Ct. App. Sept. 15, 2017).

Three Laotian correctional officers filed Fair Employment and Housing Act (“FEHA”) charges alleging they had been subjected to racial and national origin discrimination, harassment and retaliation. At the same time, they pursued claims before the Workers Compensation Appeals Board (“WCAB”) in which they alleged compensable psychiatric work-related injuries as a consequence of the claimed discrimination. The workers’ compensation judge found for the employer, concluding that the challenged conduct was lawful, non-discriminatory and done in good faith.

After the completion of the WCAB proceedings, the employer filed a motion for summary judgment in the civil discrimination suit the plaintiffs had filed. The trial court granted summary judgment for the employer, finding the civil claims were barred by the doctrines of res judicata and collateral estoppel, as those claims had been fully litigated before the WCAB. The Court of Appeal affirmed dismissal of the civil case. In both the WCAB and civil proceedings, the plaintiffs sought redress for the same psychiatric injuries caused by the employer’s discriminatory, harassing and retaliatory acts in the workplace.

This case happened to result in a win for the employer, but it could just as easily have resulted in a loss if the WCAB had ruled in favor of the employees. And that is the most important practical lesson for employers, which is the need to carefully monitor parallel workers’ compensation proceedings. Such proceedings are not uncommon, but their defense usually proceeds very differently. In the workers’ compensation realm, the workers’ compensation insurer, not the employer, generally controls the defense of the claim. The matter proceeds under more informal rules of procedure and evidence and is tried to an administrative law judge whose sympathies often lie with the employee.

Consequently, at the outset of any employment litigation, it is critical that an employer determine if there is a pending workers’ compensation proceeding; if so, the employer should carefully monitor that proceeding by proactively engaging with the insurer and its counsel to determine what issues are to be tried and to participate, to the extent possible, in any proceedings on the merits. Otherwise, the employer may find that its fate in the parallel civil proceeding—which carries with it a much greater cost of defense and potential damages—will have been decided by its workers’ compensation insurer and the WCAB.  Similarly, if the WCAB proceeding results in a “win,” the employer should lose no time in filing a motion for summary judgment in the pending civil action in order to take advantage of the victory.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Hal Brody Hal Brody

Hal Brody is a partner in the Labor & Employment Law Department. His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law.

For over 25 years, Hal has represented employers in almost…

Hal Brody is a partner in the Labor & Employment Law Department. His practice is characterized by its diversity and he has represented employers in virtually every facet of labor and employment law.

For over 25 years, Hal has represented employers in almost every conceivable forum. He has appeared before the National Labor Relations Board in connection with union organizing campaigns and unfair labor practice charges. He has handled numerous labor arbitrations. He has appeared before the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing on a broad range of employment discrimination matters, and he has practiced before the California Division of Labor Standards Enforcement and the United States Department of Labor on a wide variety of wage and hour issues. Although very much a labor generalist, over the past several years, Hal’s practice has focused on employment litigation. He has appeared before trial and appellate courts throughout California, successfully representing employers in such matters as wrongful discharge, sexual harassment, ERISA, wage and hour, and employment discrimination lawsuits. The diversity of Hal’s practice can be gauged by the range of employers he has represented in such litigations: financial institutions; museums; hospitals; airlines; retailers; newspapers; food processors and distributors; theme parks; publishers; and television and motion picture companies.