To prove a claim of serious and willful misconduct, it is the employee’s burden of proof, meaning the employee must show an intentional act, or an intentional failure to act, with knowledge that serious injury is a probable result, or with an active disregard for the consequences:

• On the part of the employer or their managing representative.
• If the employer is a partnership, on the part of one of the partners, its managing representative or general superintendent.
• If the employer is a corporation, on the part of an executive, managing officer or its general superintendent.

A California court ruled that simple or even gross negligence on the part of the employer is not sufficient.1 In another case, a California court ruled that an employer must have been fully aware of the existence of the danger (perhaps through a safety ordinance, past accidents or from the advice of others) and purposefully ignored it.2

To support a holding of an employer’s serious and willful misconduct based on violation of a safety order, the WCAB must find all of the following:3

• The specific manner in which the order was violated;
• That violating the safety order caused the injury or death;
• The specific manner in which the violation caused the injury or death;
• That the safety order and its applicability were known to and violated by a specific named person for whom the employer is accountable, or that the condition was obvious and created a probability of serious injury; and
• That the failure of the employer or its representative to correct the condition constituted a reckless disregard for the probable consequences.

• Your insurance carrier is prohibited by law from insuring this liability.4 This means that you are responsible for paying the 50 percent penalty to the injured worker for your serious and willful misconduct.

1. Johns-Manville Sales v. WCAB, 96 Cal. App. 3d 923 (1979)