A workers’ compensation claim is typically the exclusive remedy that an injured employee has against an employer. However, California Labor Code § 4553 provides an exception in cases of ‘serious and willful misconduct’ (S&W) by an employer. The general rule is that an employee’s total workers’ compensation award may be increased by as much as 50% to account for serious and willful misconduct.

California state law prohibits employers from obtaining insurance to cover the risk of serious and willful misconduct damages. For this reason, it is crucial that employers know how to avoid facing liability. Here, our Fresno workers’ compensation defense attorneys highlight four steps employers can take to reduce their risk of facing an S&W misconduct claim.

Ensure Ongoing Compliance to State and Federal Workplace Safety Regulations

Serious and willful misconduct has a relatively high bar in California. State courts have consistently noted that employer negligence is not serious and willful misconduct. Instead, a finding of S&W misconduct generally means that the employer:

  • Intentionally put employees in harm’s way; or
  • Acted in a manner that showed extreme disregard for worker health and well-being.

What this means in practice can vary based on many different factors. That being said, employers found in violation of state or federal workplace safety regulations are at a much higher risk of being held liable in an S&W misconduct claim. Full compliance with safety regulations reduces the risk of accidents and liability.

Respond Promptly to All Employee Reports and Complaints of Safety Problems

As noted above, serious and willful misconduct liability generally requires employer knowledge or extreme disregard. California courts are much more likely to impose liability in cases where a workplace safety issue was reported by an employee, but it was dismissed, not investigated, or otherwise mishandled. Employers can dramatically reduce the risk of an S&W misconduct liability by taking employee concerns seriously and following up on reports or complaints.

Save All Relevant Documents, Records, and Information

Finally, California employers can benefit from keeping diligent, well-organized records. It is generally a best practice to keep records related to maintenance efforts, work safety complaints, and any follow-up action that was taken. Among other things, documentation such as repair invoices and internal memos are useful to confirm the steps an employer took to address a problem. Should an employee file a serious and willful misconduct claim after an accident, employers need comprehensive, persuasive evidence against liability. 

Call Our California Serious and Willful Misconduct Defense Attorneys Today

At Yrulegui & Roberts, our dedicated California workers’ compensation defense lawyers fight tirelessly to protect the rights and interests of our clients. Mr. Joe Igoa devotes his practice to defending employers from serious and willful claims. If you have questions about S&W misconduct claims, we are here to help. Contact us now to set up a fully private review of your case. We defend employers in S&W misconduct claims throughout Central California, including Fresno, Oxnard, Clovis, Madera, Merced, Modesto, Turlock, Bakersfield, and Sacramento.