Labor Code Section 3600(A) (10) May Apply Before Layoff

In an opinion that will not be published in the official reports the Court of Appeal discussed the reporting of an injury after the notice of layoff has been given to an employee, but before the actual layoff has occurred.

The applicant suffered an admitted injury and missed several weeks of work. The applicant came back to work and suffered a back injury but did not immediately report the new injury.

At the time of the alleged new injury there had been rumors that there was going to be a temporary layoff. The applicant questioned the supervisor whether the rumors of the layoff were true prior to reporting the injury.

The evidence was apparently contradictory as to whether the injury was actually reported before the layoff. The applicant testified that he told the supervisor about the injury before the formal notice of the layoff was given to the applicant.

The applicant had a private trucking company that was not affiliated with the employment where he was allegedly injured. He informed his supervisor that if he was not going to be laid off he would need to make arrangements to have someone else deliver a load for his trucking company. The supervisor testified at trial that he told the applicant that he better take the load himself This was before the applicant reported the injury.

The supervisor testified that this was a “major hint” to the applicant that he was going to be laid off even though it was not actual knowledge. The supervisor testified that after the “major hint” the applicant reported the injury.

The appellate court looked at Labor Code section 3600 (a) (10). All four sections of this subdivision refer to notice of the termination or layoff.  The Workers’ Compensation Appeals Board did not believe that the “major hint” provided actual or constructive knowledge to the applicant of the prospective layoff. The appellate court disagreed.

The appellate court reasoned that the “major hint” was enough to give the applicant actual knowledge of the layoff. The case was remanded to the Workers’ Compensation Appeals Board for reconsideration.

Thus, it would appear that when presenting a defense as to notice of termination or layoff under Labor Code section 3600 (a) (10) the record must be fully developed. It must be determined not only when the actual layoff or termination took place but also when there may have been rumors, innuendos or “major hints”.

Case: Hunt Wesson Foods V. W.C.A.B. (DeRosa)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters