Workers’ compensation insurance provides an important form of legal protection for companies and organizations. An employee cannot sue an employer for a job-related injury. However, a specialized section of California law (Labor Code § 4553) allows workers to seek additional damages from an employer if they were hurt due to “serious and willful” misconduct.

The penalty for serious and willful misconduct is a 50% increase in workers’ compensation awards. There may be circumstances in which an employer should settle a serious and willful misconduct claim. However, the standard for liability is high. A settlement should only be offered in narrow circumstances. Here, our Salinas workers’ compensation defense lawyer explains what you should know.

Background: Burden of Proof on Employee—and the Bar is High

First and foremost, the burden of proof in a serious and willful misconduct claim in California always rests on the employee. The worker who makes a claim has the burden of proving that they were harmed due to serious and willful misconduct by their employer. In general, there are two main ways injured workers can prove serious and willful misconduct:

  • Establish that the employer failed to take action to protect employee(s) even though they had knowledge that a serious injury would probably be the result; or
  • Establish that an employer violates a California state workplace safety regulation and that the violation in question contributed to the accident.

Courts in California have, time after time, determined that serious and willful misconduct is not a synonym for negligence. Even if an employer is negligent, that does not mean that they engaged in serious and willful misconduct. Instead, serious and willful misconduct is something beyond negligence. It is knowingly putting employees at risk of serious harm and/or violating a state workplace safety rule.

Settlement Could Be the Right Option for an Employer (But the Circumstances Matter)

Employers need to be ready to defend themselves aggressively against a serious and willful misconduct claim. As the bar for liability is high, employers should generally be prepared to raise a defense against such a claim. That being said, a settlement could certainly be the right approach in some cases. Employers exposed to potential liability for serious and willful misconduct should carefully explore all settlement options with an experienced workers’ compensation defense lawyer.

Statutory Rule Holds Serious and Willful Misconduct Liability is Uninsurable

California law is clear: An employer’s liability for serious and willful misconduct—similar to any liability for a criminal workers’ compensation violation—is not insurable. In other words, an employer cannot obtain any type of workers’ compensation coverage for the additional penalty—the 50% increase in benefits—for serious and willful misconduct. Any settlement or verdict will be paid out of an employer’s own pocket.

Contact Our Salinas Workers’ Compensation Defense Attorney for Legal Support

At Yrulegui & Roberts, we are diligent, aggressive, and solutions-driven advocates for our clients. Are you an employer defending a serious and willful misconduct claim? We are here to help. Reach out to us by phone or send us a direct message for a confidential, no-commitment consultation. Our firm handles workers’ compensation defense in Salinas, Monterey County, the San Joaquin Valley, and beyond.