Serious and Willful for Employers - Part 2

Saturday, May 24, 2003 | 0

Our last article in this series introduced the concept of "serious and willful misconduct" of the employer with a review of Labor Code section 4553 and a couple of cases that define the consequences of a violation of that section.

First, an important distinction to make is that LC 4553 is different than LC 132a, though the penalty provisions are similar. 4553 makes it illegal to intentionally place an employee in harms way. 132a makes it illegal to discriminate against an employee on the basis of a workers' compensation claim or injury.

Additionally, it is very important for the employer to understand that while the workers' compensation carrier may provide a defense against an allegation of section 4553 violations, the increase in compensation that results from such a finding cannot be insured against (Insurance Code section 11661. See also Mercer-Faser Co vs. IAC (1953), 40 Cal2d 102.)

Remember that the underlying element in a finding of serious and willful misconduct is an intent to injure, or a willful disregard for the safety of the worker. The courts have interpreted this intentional element against the backdrop of various factual patterns, and have defined certain fact patterns that will give rise to a finding of a serious and willful violation:

(1) fraudulently concealing a dangerous condition from the employee;
(2) fraudulently concealing facts that implicate an employment condition to the employee's injury or illness;
(3) knowingly violating a safety statute or regulation (such as an OSHA regulation);
(4) failing to adequately investigate the safety needs of particularly known hazardous situations;
(5) removing safety equipment or devices; or
(6) failing to implement known and proven safety practices or precautions.

In each of these situations, the requisite element of intent is necessary. Being stupid does not give rise to a 4553 violation. The employer would have to know of a safety issue, and would have to engage in an act tantamount to criminal activity for 4553 to be applicable.

Many of the cases involving section 4553 come from the civil courts where the employee alleged an intentional battery or similar conduct, and the courts have said the workers' compensation was the exclusive remedy. One of the latest cases where this occurred was Gunnell vs. Metrocolor Labs (2001) 92 Cal.App.4th 710. The Gunnell case is a classic fact pattern that the courts will find constitute a 4553 violation:

In 1989, Gunnell, Walters, and Cohen worked for four and one-half months at Metrocolor Laboratories, Inc., which owned a facility to process and develop television and movie film. The laborers' assignment was to clean walls, pipes, and other parts of the interior of the film lab.

Metrocolor directed Gunnell, Walters, and Cohen to clean the interior of the film lab with a blue-green substance they then believed to be cleaning soap. They filled mop buckets and sprayers with the blue-green solution from 55-gallon barrels. Metrocolor provided no hazard training, posted no signs about chemical hazards, and never told the laborers what the 55-gallon barrels contained. None of the barrels of blue-green solution had labels warning of a chemical hazard or identifying the contents of the barrels. Testimony at trial divulged that the supervisors of the job removed labels from each barrel before offloading them from a truck so that the barrels provided to the workers had no labels by the time the workers used them.

Cleaning the interior walls and ceiling of the Metrocolor film lab exposed Gunnell, Walters, and Cohen to the blue-green cleaning substance. Gunnell transferred undiluted blue-green liquid from the barrels to buckets and sprayers. The workers sometimes did not dilute the substance before using it. Gunnell sprayed the ceiling with the blue-green solution, causing dirt to bead. He then used a mop to remove the cleaner and dirt from the ceiling, usually repeating the procedure several times to clean each area. After cleaning the ceiling, he cleaned the walls, and finally cleaned floors and pipes. As he worked on the ceiling, the blue-green cleaning liquid 'rained' down on him, making contact with his skin, running down his back and chest, and getting inside his gloves. Pressing the mop against the ceiling and walls caused liquid to squeeze out of the mop and run down the handle into his sleeves, down his arms, and into his shirt. Gunnell used several gallons of solution every day. After a day's work, the blue-green solution soaked his clothing and feet. He remained wet until he arrived home. He worked in street clothes. Metrocolor provided no protective gear except for rubber gloves, which disintegrated after about a half-hour of use, and a paper suit that did not protect Gunnell from being soaked.

While working at Metrocolor, Gunnell did not recall ever being told what the blue-green cleaning substance was inside the barrels. No one told him about or required him to attend a safety program or a 'right to know' program. No one trained him on how to handle chemicals. Gunnell testified that on one occasion when he was working in clothing soaked with the blue-green substance, he saw his supervisors observe as he cleaned a room. Gunnell asked if the blue-green substance was safe to which he received an affirmative response.

After finishing his work at Metrocolor, Gunnell learned that the blue-green substance provided for cleaning the film-processing lab was 'Absorb,' an organic solvent/degreaser. Absorb contains sodium hydroxide and 2-butoxyethanol, known as '2BE.' Sodium hydroxide and 2BE appear on the OSHA Director's list of hazardous substances. 2BE is one of a class of chemicals known to cause brain and nervous system damage. 2BE absorbs readily through the skin and into the bloodstream. Diluting 2BE causes it to absorb through skin more readily. Once in the bloodstream, 2BE targets the liver, kidneys, respiratory tract, and central nervous system. Its effects on the central nervous system include headaches, nausea, dizziness, confusion, loss of consciousness, and possible death. Breathing vapor, combined with skin exposure, significantly increases exposure. Workers using 2BE should avoid skin contact and wear chemical-resistant gloves and possibly a respirator.

During four and one-half months of using Absorb, Gunnell sustained injuries which included a slowing of brain function; anxiety and panic attacks; concentration difficulties; loss of cognitive functioning; personality changes, mood and temper problems; respiratory problems; and numbness. Gunnell was classified as disabled from working as a laborer. Plaintiffs' toxicology and neuropsychology experts testified that exposure to 2BE at the Metrocolor film lab, to a reasonable degree of medical probability, caused Gunnell's injuries. The employees sued the employer civilly, and the trial court returned a jury verdict of over $6 million. The Appellate Court said that it felt "constrained" by the exclusive remedy provisions of the Labor Code in overturning the jury verdict - obviously expressing its shock and dismay that such conduct can go on even in modern times.

Nevertheless, the Court upheld the fundamental principles of the workers' compensation bargain:

"To permit an action at law for damages for any intentional misconduct by an employer would significantly disturb the compensation bargain upon which the WCA is based. '[S]ection 4553 is the sole remedy for additional compensation against an employer whose employee is injured in the first instance as the result of a deliberate failure to assure that the physical environment of the work place is safe."

The next article in this series will review what the employer should do when a section 4553 action is alleged.