Generally an employee is limited to the workers compensation system to pursue remedies when they are injured on the job. However there are a few rare, but useful exceptions in which an employee can sue their employer directly in civil suit outside the workers compensation system.

1) Fraudulent concealment of industrial source of injury

An example might be that the employee contracted a disease that the employer knew, but employee did not. The essential elements are (1) the employer knew that the plaintiff had suffered a work-related injury before the employee knew; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment. California Labor Code § 3602(b)(2).; Forster v. Zerox Corp. 40 Cal.3d 306, 13 CWCR 304; Palestini v. General Dynamics Corp. 67 CCC 754, 30 CWCR 172; Jensen v. Amgen, Inc. (2003) 105 CA4th 1322, 68 CCC 196, 31 CWCR 24; Encinas v. Catholic Healthcare West 68 CCC 184 (np)

A complaint alleging that employers knew that the employee’s exposure to the chemicals could harm him, yet concealed that knowledge from him, thereby depriving the employee of opportunity to take proper precautions to avoid the continued exposure, which aggravated his work injury and eventually caused cancer, alleged facts sufficient to constitute a cause of action under California Labor Code § 3602(b)(2). (See also Palestini v. General Dynamics Corp. (2002) 99 CA4th 80, 97, 120 CR2d 741, 754)

2) The exclusivity rule does not apply when the employer’s conduct falls outside the compensation bargain

Examples include racial and sexual harassment, involuntary confinement, violent and coercive criminal conduct, fraud for concealment of workplace danger. Fermino v. Fedco 59 CCC 296; Shoemaker v. Myers 55 CCC 494; Vacanti v. SCIF 24 C4th 800, 65 CCC 1402; Fretland v. Co. of Humboldt 64 CCC 195; Fotiades v. Hi-Tech Collision & Painting Services, Inc. 67 CCC 255 (np) (photo in restroom – $1.5 M reduced. No ratification.);

3) Battery  

Injury caused by willful physical assault by the employer; LC§3602(b)(1); Soares v. Oakland 9 CA4th 1822; Herrick v. Quality Hotels, Inns & Resorts, Inc. 58 CCC 764 (threatened with gun)

4) Defective Product

For example, if a Tesla employee buys his/her own Tesla, then, while driving on the weekend, the Tesla bursts into flames. He/She can sue Tesla in personal injury for products liability. He/She would not be excluded by the work comp rule, even though he/she worked for Tesla.

5) Release of confidential medical information beyond what is necessary

In addition to any other remedies available at law, a patient whose medical information has been used or disclosed in violation of Section 56.10 or 56.104 or 56.20 or subdivision (a) of Section 56.26 and who has sustained economic loss or personal injury therefrom may recover compensatory damages, punitive damages not to exceed three thousand dollars ($3,000), attorneys’ fees not to exceed one thousand dollars ($1,000), and the costs of litigation. CC§56.35; Pettus v. Cole 61 CCC 975

6) Baby can sue mother’s employer directly for prenatal injury

A suit was successfully brought by a baby whose mother’s exposure to carbon monoxide caused the baby a prenatal injury. Snyder v. Michael’s Stores, Inc. 62 CCC 1351, 24 CWCR 274

7) Employer fails to raise workers compensation exclusivity as an affirmative defense

If an employer fails to raise workers compensation exclusivity they waive the defense in civil court. The workers’ compensation exclusivity rule may be waived by the employer’s failure to plead and prove it as an affirmative defense to an employee’s civil action … unless the “conditions of compensation” appear on the face of the complaint. (See Doney v. Tambouratgis (1979) 23 C3d 91, 96, 151 CR 347, 350)

And even if the employer asserts exclusivity as an affirmative defense, the defense may still be waived if the employer fails to seek a ruling on it from the court before a verdict is rendered. [See Ventura v. ABM Indus., Inc. (2012) 212 CA4th 258, 265-266, 150 CR3d 861, 868—“it is the defendant’s burden to plead and prove that the (workers’ compensation) act applies”

Questions about workers compensation? Contact author Dustin Saiidi, Esq.