by Seth Merrick, Rains Lucia Stern, PC
The stresses inherent in being a sworn peace officer come in myriad forms, the obvious being those such as officer involved shootings, dealing with crimes involving children, and particularly gruesome crime scenes. Other less sensational work related stressors inherent to the position, however, can also be the cause of psychiatric injuries. While the former are relatively clear cut when filing a work related psychiatric claim, the California Labor Code provides employers with a Good Faith Personnel Action defense (GFPA) which, if proven, will render the employee claim non-compensable.
While having your psychiatric claim found non-compensable means you lose your rights to Workers’ Compensation benefits, it could also mean that you may lose your right to an industrial disability retirement. Depending on the situation, such a finding could be catastrophic for an officer and their family.
Specifically, Labor Code Section 3208.3(h) provides that “No compensation … shall be paid by an employer for a psychiatric injury if the injury was substantially caused by lawful, non-discriminatory good faith personnel action.”
The defense requires the use of a legal formula to determine whether it is applicable or not. This article will not address the details of the formula. Instead, the term “good faith” and examples of everyday conduct and how it may or may not qualify as a “personnel action” will be discussed.
“Good faith” is a frequently argued term of art in the legal field, with significant argument between parties as to whether the standard for its application has been met. In determining whether the employer acted in good faith, Workers’ Compensation case law requires courts to look at the following:
• Was the action taken with some sort of ill-disposed intent on the part of the employer?
• Did the employer follow its own policies, rules and procedures?
• Was the worker unfairly singled out for the application of these rules and procedures?
• Was there a business necessity behind the action taken?
While this list is not exhaustive, these factors can help you or an attorney determine whether an employer acted in good faith in executing whatever action may be at issue. Proving bad faith in court is generally a very difficult burden, and even more so in a law enforcement environment.
“Personnel action” is defined as conduct by management or attributable to management including conduct by a fellow employee who has authority to review, criticize, demote or discipline an employee and can include transfers, demotions, layoffs, or performance evaluations and can include warnings, suspensions and termination.
In instances of more obvious and clear personnel actions such as internal affairs investigations, demotions, suspensions, termination for cause, termination while on probation, being placed on probation or performance improvement plans, an employee must prove bad faith on the part of the employer.
In other less obvious cases, the employee may have to first establish that the employer’s conduct even rises to the level of an “action” for the purpose of the defense. One controlling fact will be whether the action (such as a memorandum from a supervisor) carried actual discipline or a threat of discipline? A memorandum sent to an officer, although highly critical, that does not indicate that specific action or discipline will be taken does not constitute a personnel “action.”
On the other hand, there are established examples of actions taken against an employee where the GFPA defense is not applicable. These include:
• The filing of a grievance/complaint against an employee by another employee.
• Stress stemming from an employee’s belief that they were not properly supported by management during an investigation or complaint against them.
• Stress stemming from being ostracized, mistreated or threatened by fellow employees, even if the ill treatment by the fellow employee was associated with work related activity, will not count as a GFPA.
It is the conduct where the line is not so finely drawn that ambiguity sets in. An example would be where an individual files a psychiatric claim after being involved in a shooting where an IA investigation was initiated against them. Since there are two potential bases for the stress injury (the “personnel action” IA and the compensable shooting) it will be up to a physician to determine whether both contributed to the injury and if so how much. Depending on what the officer reports as being troublesome, there may be a basis for the GFPA defense.
Another scenario involves a stress injury caused by the general and constant fear of being disciplined by an overzealous command staff, where there are no specific disciplinary actions at issue. What about an injury caused by the public’s increased scrutiny of police officers’ activities through mass media and social networking? It is unknown whether the general threat of disciplinary conduct or concerns with public scrutiny are enough to trigger the GFPA defense. While one could argue that these actions do not constitute “personnel actions,” it is unknown how a court would view these facts.
The GFPA defense will not be an issue in the overwhelming majority of psychiatric claims filed by peace officers. However, the increased scrutiny by the public and resultant aggressive changes in the way departments are managed may in fact open the door for a new breed of psychiatric claims that may be more susceptible to the GFPA defense.
It is essential that peace officers are aware of the possibility of the employer asserting the good faith personnel action defense when filing their stress claims. If, based on the discussion above, you think that the defense could be argued by your employer, seek guidance from an attorney to discuss potential ramifications.
Please Note: Pursuant to Labor Code Section 5432(a), making a false or fraudulent workers’ compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.
