The Serious and Willful Claim: Holding Employers to Account for Deliberate Safety Failures

California's workers' compensation system is no-fault — you can receive benefits regardless of who caused the injury. But what happens when your employer didn't just fail to keep you safe, but deliberately disregarded your safety? That's where a "serious and willful" claim comes in.

Labor Code section 4553 provides that the amount of compensation an injured employee receives shall be increased when the injury is the result of the employer's serious and willful misconduct. This type of claim 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?

To pursue this claim, the injured worker must show more than ordinary negligence. The mere failure to follow a regulation, by itself, isn't enough. Willful misconduct means at least the intentional doing of something either with knowledge that serious injury is a probable result, or with wanton and reckless disregard of the possible consequences.

In short, it must be an affirmative and knowing disregard of safety — not just carelessness.

How to Prove a Serious and Willful Claim

The injured worker must demonstrate three things. First, the employer knew about the dangerous condition. Second, the employer knew that leaving it in place would probably cause serious injury. Third, the employer deliberately failed to take corrective action.

These claims often involve depositions, expert testimony, and a more extensive investigation than a standard workers' comp case — all of which an experienced attorney can pursue on the injured worker's behalf.

Cal-OSHA Violations Can Support the Claim

Labor Code section 4553.1 provides an alternative path. If an employee was injured as a result of a Cal-OSHA violation, that violation can support a serious and willful claim. For example, an employer that routinely fails to cover floor holes, roof openings, or wall openings on construction sites — or places inadequate fall protections — may violate Cal-OSHA Section 1632 and face a serious and willful claim.

Examples of Potential Serious and Willful Misconduct

These claims typically involve situations where an employer has intentionally allowed severe safety violations:

• Failure to provide safety equipment — deliberately neglecting to provide helmets, gloves, or respirators to employees in hazardous conditions
• Ignoring safety regulations — knowingly allowing employees to operate dangerous machinery without proper training or safeguards
• Inadequate training — intentionally providing insufficient safety training that leads to preventable accidents
• Removing safety guards — deliberately disabling guards on machinery, substantially increasing the risk of accidents
• Ignoring hazardous materials — knowingly permitting unsafe storage or use of hazardous materials without proper containment
• Reckless indifference to complaints — deliberately ignoring safety concerns raised by employees or failing to investigate complaints

What the Increased Benefits Look Like

A serious and willful finding can result in 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.

Importantly, the employer — not the insurance company — is responsible for paying these additional benefits.

Don't Miss the Deadline

The statute of limitations for filing a serious and willful claim is twelve months from the date of injury. Missing this deadline means losing the right to pursue the claim, so it's critical to consult with an attorney as soon as possible after a workplace injury.

If you've suffered a work-related injury and believe your employer knowingly disregarded your safety, call us at (415) 495-7800. We can evaluate whether a serious and willful claim is appropriate in your case.