Holding Employers Accountable When They Consciously Disregard the Safety of Their Employees

by Adriana Valdez

The California workers’ compensation system is a program designed to provide benefits to employees who suffer work-related injuries or illnesses. In California, the workers’ compensation system is a no-fault system, meaning that employees can receive benefits regardless of who is at fault for the injury or illness. There are additional claims a worker can make to increase the benefits they receive as a result of a workplace injury. These include a civil “third party lawsuit” against someone or company other than your employer that caused your injury and a “serious and willful” claim against your employer.

“Serious & Willful” Claim

When an injured employee believes that their employer’s actions were extreme and deliberate, it may warrant additional compensation; this is called a” Serious and Willful” claim. Labor Code section 4553 provides that the amount of compensation an injured employee can receive shall be increased where the employee is injured by reason of the serious and willful misconduct of the employer. 

This type of workers’ compensation claim can be taken by an injured employee against their employer when the employee believes that the injury was a result of the employer’s serious and willful misconduct. In other words, it is a legal claim that alleges that the employer intentionally engaged in conduct that put the employee at risk of harm, resulting in an injury or illness.

What is Serious and Willful Misconduct?

The term “serious and willful misconduct” is not readily defined by the statute. To pursue a serious and willful claim, the injured worker must provide evidence that the employer’s actions went beyond mere negligence or ordinary negligence. The mere failure to perform a statutory duty is not, alone, willful misconduct. The failure to perform a statutory duty amounts only to negligence. (Mercer-Fraser Co. v. IAC (Soden) (1953) 18 CCC 3, 11.)  However, as discussed below, a violation of a Cal-OSHA standard or regulation can support a “Serious and Willful” claim for additional monetary benefits.

Willful misconduct implies at least the intentional doing of something either with the knowledge that serious injury is a probable (as distinguished from a possible) result or the intentional doing of an act with a wanton and reckless disregard of its possible result. (Soden, supra, 18 CCC 3, 11-12.) The claim typically alleges that the employer acted intentionally, with knowledge of a dangerous condition, or in reckless disregard for the safety of their employees. It must be an affirmative and knowing disregard for the consequences. (Hawaiian Pineapple Co., Ltd. v. IAC (Churchill) (1953) 18 CCC 94, 97-98.)

How Does an Injured Worker Prove a Serious and Willful Claim?

Proving a serious and willful claim can be challenging, as it requires the injured employee to demonstrate that the employer’s actions met the legal threshold for intentional misconduct. (See Central California Ice Co. v. IAC (Montgomery) (1944) 9 CCC 276, 278.) To prove that the employer is guilty of serious and willful misconduct, the employee must show that the employer: (1) knows of the dangerous condition; (2) knows that the probable consequence of its continuance will involve serious injury to the employee; and (3) deliberately fails to take corrective action. (Johns-Manville Sales Corp. v. WCAB (Horenberger) (1979) 44 CCC 878, 883.)

Serious and willful claims often lead to a more extensive investigation and a more complex legal process. This can include depositions, expert testimony, and other legal proceedings to establish the misconduct, all of which an experienced attorney can pursue for their injured client.

Employer Violations of Cal-OSHA Regulations to Prove a Serious and Willful Claim

LC 4553.1 also provides an alternative for proving serious and willful misconduct on the part of the employer. Under LC 4553.1, an employer may be found guilty of serious and willful misconduct if an employee was injured as a result of a violation of Cal/OSHA regulations. A serious and willful claim as a result of a Cal/OSHA violation may be brought under either LC 4553 or 4553.1. For example:

  • an employer that routinely fails to cover holes in the floor, on roofs or walls on construction sites or places inadequate protections against such fall hazards may violate Cal-OSHA Section 1632 and be held accountable for a “Serious and Willful” claim.

Further Examples of Potential Serious and Willful Claims

Serious and willful claims typically involve instances where an employer has intentionally engaged in or allowed severe safety violations or misconduct that jeopardize employee well-being. Some examples include:

  • Failure to Provide Safety Equipment – An employer deliberately neglects to provide essential safety equipment (e.g., helmets, gloves, or respirators) to employees working in hazardous conditions, knowing the risks involved.
  • Ignoring Safety Regulations – An employer knowingly disregards safety regulations and allows employees to operate dangerous machinery without proper training or safeguards.
  • Inadequate Training – An employer intentionally provides inadequate safety training to employees, leading to preventable accidents or injuries.
  • Removing Safety Guards – Deliberately removing or disabling safety guards on machinery, which substantially increases the risk of accidents.
  • Ignoring Hazardous Materials – An employer knowingly permits the use or storage of hazardous materials in unsafe conditions without proper containment or precautions.
  • Reckless Ignorance – Employers who deliberately ignore safety concerns raised by employees, fail to investigate safety complaints, or take appropriate corrective action when informed of hazards.

Increased Money Benefits for the Injured Worker  

Serious and willful claims can result in higher compensation for the injured worker compared to regular workers’ compensation benefits. Labor Code Section 4553 provides that an injured worker may receive additional compensation equal to one half of all benefits paid.  For example, if a worker receives or is entitled to $100,000 in past and future medical care and disability payments, they may receive an additional $50,000.

Who Pays for the Increased Benefits in a Serious and Willful Claim?

An employer, rather than the insurance company, is responsible for paying any additional benefits for serious and willful misconduct under LC 4553. However, an insurance company may provide insurance against the expense of defending any suit for serious and willful misconduct against an employer.

When Must an Injured Worker File a Serious and Willful Claim?

It’s essential for the injured worker to be aware of the statute of limitations for filing a serious and willful claim, as there are specific time limits within which such claims must be filed. Labor Code section 5407 provides that the employee must file his/her serious and willful claim within twelve (12) months from the date of injury.  

Workers’ compensation laws and regulations can be complex, especially a serious and willful claim. Serious and willful claims often lead to more extensive legal work but can be very beneficial to an injured worker. 

If you have suffered a work-related injury, Arns Davis Law is here to answer any of your questions about your workers’ compensation case and whether you should file a serious and willful claim against your employer.

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