Under California Labor Code § 4553, an employer which is found to have caused an employee's injuries by its "serious and willful misconduct" (known by the abbreviation "S&W") will be ordered to pay an amount equal to half the value of all benefits paid as a result of the injury. This includes temporary and permanent disability, and medical benefits. It probably also includes the value of vocational rehabilitation benefits, but this question has not been resolved by the Workers' Compensation Appeals Board.

Under the language of the statute the Workers' Compensation Judge has no discretion to adjust the amount of the award; there either is no S&W liability, in which case the employer pays nothing, or there is, in which case the employer pays the full amount. This liability is uninsurable; the employer must pay any S&W award from its own funds.

The employee's burden in attempting to prove a case of "serious and willful misconduct" (S&W) under Labor Code § 4553 can be very difficult.

1. Serious
   First, the employee must show that the misconduct was "serious"; that is, that the injury reasonably to be expected to result from exposing an employee to a recognizable hazard will be severe.

2. Willful Second, he or she must also show that the conduct was "willful"; that is, that the employer actually knew of the dangerous condition, yet deliberately failed to take corrective action. This requirement has been interpreted by the courts to mean conduct which is something more than even gross negligence. It has been said to be conduct of a quasi-criminal nature. Johns-Mansville Sales Corp. v. WCAB (Hornberger) (1979) 96 Cal. App. 3rd 923, at 931, 44 CCC 878, at 882. In Rogers Materials Co. v. IAC (Drake) (1965) 63 Cal. 2nd 717, at 723, 30 CCC 421, at 425, the court said that an employer commits willful misconduct "...when he 'turns his mind' to the fact that injury to his employees will probably result from his acts or omissions, but he nevertheless fails to take appropriate precautions for their safety."

   The most difficult way to prove "willfulness" is to attempt to show that the employer's conduct was intentional. An easier way is to prove either:

   1. that the employer failed to act even though it had information or knowledge that a serious injury would probably result, Mercer-Fraser Co. v. IAC (Soden) (1953) 40 Cal. 2nd 102, 18 CCC 3, or
   2. that the employer violated one of California's safety regulations, even if no citation was issued by Cal/OSHA (see discussion of LC § 4553.1 below).

Under Labor Code § 4553.1, Cal/OSHA regulations (also known as safety orders) create a standard of conduct for employers. Whether or not Cal/OSHA has issued a citation, the employee can prove S&W liability if he or she can show:

1. the "specific manner" in which a safety order was violated;
2. that the violation caused the employee's injury;
3. that both the safety order and the conditions making the safety order applicable to the work were known by a particular named person, who can be either the employer, a partner or a "managing representative (eg, a supervisor or foreman).

If these elements are too tough for the employee to meet, 4553.1 also allows him or her to prove S&W liability by showing:

1. that the condition making the safety order applicable was obvious;
2. that it created a probability of serious injury; and
3. that the failure to correct the condition constituted reckless disregard for the probable consequences.

Because the definition of "serious and willful misconduct" as used in the WCAB's application of Labor Code § 4553, and the definitions of "serious" and "willful" as used by the Cal/OSHA Appeals Board are very similar, the employee may attempt to offer evidence at the WCAB of a Cal/OSHA citation that has become final (that is, either not appealed, or appealed and lost) as proof of either or both of the elements of S&W liability.

In other words, a final citation which has been classified as serious can be adopted by the WCAB to meet the first S&W element of the seriousness of the employer's conduct. A final citation classified as willful or repeat can be offered to prove that the conduct was both serious and willful. This is why any settlement of a serious, repeat or willful violation must include a non-admissions clause.

Despite the high level of conduct set by the courts as to what constitutes "serious and willful misconduct", the reality is that workers' compensation judges are, by and large, sympathetic to injured employees and unsympathetic to employers. They also, as a rule, dislike hearing S&W trials. In the last few years we have seen a reversal in the trend of decisions after trial: Employers are now losing more cases than they are winning. It appears that, at least at the WCAB, the standard of conduct needed to prove S&W liability is dropping.

This trend, together with the "all or nothing" result mandated by the statute, can create intense pressure on whichever side feels weaker to settle the claim rather than go to trial. A general recommendation for employers in the current climate is to seek a reasonable settlement of S&W claims whenever the employee has a chance of prevailing at a hearing.