Serious and willful misconduct
In the California Worker’s Comp System, occasionally there will be serious and willful misconduct, either on the part of the employer or on the part of the employee.
A. The Employee
With 4 exceptions, serious and willful misconduct on the part of an employee will reduce workers compensation payments by ½.
The 4 exceptions:
1. Injury resulting in death ;
2. Injury with a permanent disability if over 70% ;
3. Injury caused by violation of a safety law or regulation by an employer;
4. The employee is under 16
Many cases where an employer claims serious or willful misconduct are cases where an employee engages in illegal activity.
B. The Employer
If an employer engages in serious and willful misconduct which causes injury to an employee, the amount payable to the employee increases by 50%.
This 50% penalty applies to all benefits provided including medical benefits and vocational rehabilitation.
The employers penalty amount paid is not covered by his or her workers compensation insurance.
What is serious and willful misconduct?
Only extreme cases of misconduct are considered serious and willful. Our employer’s misconduct must be extreme – misconduct almost tantamount to intentional self -injury.
An employer’s misconduct, similarly, must be similar to an intent to injure or a reckless disregard of an employee’s safety.
An employees disregard of labor code safety requirements or the safety regulations of the Department of Industrial Relations is usually enough to meet the standard.