Intentional Misconduct May not be a workman’s compensation claim

As California’s leading employment law firm representing plaintiff-employees, we’ve heard just about every workplace horror story there is. Many times, the employer will attempt to shield itself from liability by claiming that the act of retaliation in response to whistle blowing or other acts by the employee is pre-empted by the worker’s compensation laws. That’s just not so in many cases!

1. Physical Assault by employer. Hart vs. National mrg. and Lands, 189 CA3d 1420 (1987). However, if the assault is by a co worker and not a manager, you may be required to remain in workman’s compensation.

2. Lack of workman’s compensation coverage. If you are injured at work or have other bad acts visited on you, even if those would normally be covered by workman’s compensation, then you may sue in civil court if there’s no insurance coverage in place. Lab C. 3706.

3. Violence or coercion. Any criminal conduct like this is “always” illegal and is “never” subject to the workman’s compensation exclusivity rules.Charles J. Vacanti, MD vs Stat ecomp Ins. Fund, 24 Cal4th 820.

4. False Imprisonment is not normally a typical employment action is and istherefore exempt from workman’s compensation. Fermino vs. Fedco, 7 C4th 701.

5. Invasion of Privacy. You have a constitutional right to privacy and violations of it are not normal employer behavior. Operating Engineers Local 3 vs. Johnson, 110CA$th 180. In this case, the manager invaded the plaitniff’s privacy by a direct reprimand in front of other workers who had no need to know of the reprimand. Not every reprimand rises to the level of wrong that this one did and most would probably not give rise to this tort.

6. Sexual harassment is not pre-empted by workman’s compensation. See Accardi vs. Suip Court, 17 CA4th 341. ┬áIn fact, any discrimination on the basis of race, religion, age or gender is not a normal part of the working environment and as such does not require a trip to the work comp board. Jones vs. Los Angeles Comm. College District, 198 CA3d 794.

7. Disability Discrimination is not pre-empte by worker’s compensation. While Labor Code 132a covers no discrimination against work comp applicants, there is no rule prohibiting a civil lawsuit. City of Moorpark vs. Sup Ct, 18 C4th 1143 (1998). This includes failure to accommodate a workman’s disability. Batatti vs. Depart of Rehabilitation, 97 CA4th 344.

8. Termination in violation of public policy is not pre-empted by workman’s compensation. Shotemaker vs. Myers, 52 C3d 1. In that case, an employee claimed he was fired for reporting unlawful activity by his government employer for violation of California whistle blower protection law, Government Code Section 19683. In another case, Gantt vs. Sentry, 1C4 1083, the employee was terminated for refusing to engage in illegal anti-union acitivty. The court held this was not a part of the normal working relationship and a court suit was just fine.

In conclusion, be aware that you have many, many defenses against your employer’s claim that you should not be in court but simply pressing your work comp claim. Do Not Sit Idly by and let your employer add insult to injury by denying you a right to a fair trial if front of a jury. Call us now to discuss your case! 877 789 9707.