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CIVIL SUIT AGAINST EMPLOYER

In what is known as the "compensation bargain," California's workers traded the right to sue an employer for damages in the tort or civil law system for benefits in a "no-fault" administrative law system. Generally, "the right to recover such compensation is...the sole and exclusive remedy of the employee or his or her dependents against the employer."  Labor Code §3602. Exceptions are governed by Labor Code §§3602, 3706 (uninsured employer) and 4558 (power press exception).

Under Labor Code §3602 "An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:
   (1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer.
   (2) Where the employee's injury is aggravated by the connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.
   (3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person."

The other exceptions are noted below.

Note too that claims that fall under FEHA or ADA may cause psychological injury under workers' compensation law and also (after obtaining a right to sue letter) give rise to a civil suit against the employer.

For an extensive analysis of intentional torts for which the employer can be sued, see Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701.

See, too, Uninsured Employer and Third Party Cases

Label Item Links Comments
Labor Code Exceptions to exclusive remedy rule LC §3602  
  Failure to have workers' compensation insurance LC §3706

 
"employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death." LC §4558  
Regulations/Rules  
Cases In Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, the Supreme Court reviewed the place of intentional torts in the workers' compensation system. Fermino v. Fedco, Inc.  
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