California Employer’s Liability for Serious and Willful Misconduct

Under California Labor Code § 4553, an employer that is found to have caused an employee’s injury by its “serious and willful misconduct” will be ordered to pay an amount equal to half the value of all benefits paid as a result of the injury. This includes all temporary and permanent disability, medical, and vocational rehabilitation benefits.

This is important to note because we’re seeing lawyers increasingly push “serious and willful misconduct.” Employers need to be aware that not only is this uninsurable, this is all it takes to prove a case:

1. Proof that the employer failed to act even though it had information or knowledge that a serious injury would probably result, or
2. Proof that the employer violated one of California’s safety regulations, even if no citation was issued by Cal/OSHA.

In past years, employees’ attorneys rather routinely tacked S&W claims onto workers’ compensation claims even where the injuries clearly did not result from misconduct. Given the Board’s unfamiliarity with Cal/OSHA and negligence law, whether real or simply perceived, few of these claims went to trial, and it seemed to defense attorneys that this practice was intended merely to squeeze out a few more settlement dollars. Those claims that did go to trial, went, on the whole, badly for employers.

To read more, download the full California Employer’s Liability for Serious and Willful Misconduct: Labor Code sections 4553 and 4553.1.

Our Observations

“Serious and Willful is being pushed by lawyers more and more. It is not insurable and could cripple a company. To learn how these work financially, and to learn how to protect your company from getting hit with these Work Comp tag-ons, call us.”

– DeAnna Buck, Captive Power Broker & Maron Impagliazzo, Transportation Power Broker