Employers have a duty of care to provide a safe work environment for their employees. If they violate this duty of care, they may be liable for civil damages when an employee is assaulted or sexually assaulted by a co-worker.
A lawsuit against the employer for a workplace assault is just one option. The victim of a workplace assault can also do any or all of the following:
- Complain to their company's human resources department or a supervisor;
- File a police report;
- Apply for worker's compensation; and/or
- Bring a civil lawsuit for compensatory damages against the co-worker.
What damages can I recover if I sue for a co-worker's assault?
Victims who bring a lawsuit against an abusive co-worker or an employer may be able to recover damages for:
To help you better understand what to do if you are assaulted by a fellow employee, our California personal injury lawyers discuss, below:
- 1. The definition of “assault” and “battery” in California
- 2. What rights do I have if I am assaulted at work?
- 3. Do I have to file a police report in order to sue for an assault at work?
- 4. Do I need to file a complaint with my employer?
- 5. Should I file a complaint with my employer?
- 6. Can I sue my co-worker for assaulting me?
- 7. When can I sue my employer if I am assaulted by a fellow worker?
- 7.1. The employer was negligent in hiring, retaining or supervising the employee
- 7.2. The employee was acting within the scope of his or her employment (respondeat superior)
- 8. What can I do if my employer retaliates?
- 9. What if I am in the United States unlawfully?
- 10. Can my co-worker sue me for defamation if I accuse him/her of assault?
- 11. Can I get Worker's Compensation if I have been assaulted by a co-worker?
Penal Code 240, California's “assault” law, defines “assault” as a threat or attempt to commit a violent injury against someone else.
When unlawful force or violence is actually used, the crime is known as “battery," California Penal Code 242.
Other wrongful acts that fall under the general heading of “assault and battery” include (without limitation):
- Assault with a deadly weapon, Penal Code 245(a)(1),
- Sexual battery (groping), Penal Code 243.4,
- Indecent exposure, Penal Code 314, and
- Rape, Penal Code 261 PC.
Any of these or similar California “assault and battery” crimes can form the basis of a civil lawsuit for damages.
The law affords one a number of options for reporting a workplace assault. Fortunately, victims don't have to choose one over the other. They can -- and usually should -- do more than one.
Victims of a co-worker assault can:
- Report the crime to the police,
- File a complaint with the employer, and/or
- File a worker's compensation claim or a lawsuit against the co-worker and/or employer.
The difference between a criminal complaint and a civil lawsuit for damages
Lawsuits for workplace assault serve a different function than a criminal prosecution or an HR complaint.
The criminal justice system is focused on the perpetrator. It is about determining guilt and appropriate criminal punishment. The D.A. brings the action and decides whether to pursue charges and whether to let the perpetrator cut a deal.
A civil lawsuit, on the other hand, is focused on the victim. It is about making the victim as whole as possible. The victim is a party. This means that the victim gets to decide how far to take a lawsuit and whether to settle out of court.
No. A civil lawsuit does not require a police report or a criminal prosecution. And if the prosecutor does bring criminal charges, a conviction is not required for the victim to sue. A victim can bring a civil lawsuit even if a jury finds the defendant “not guilty” at trial.
However, it is usually in the victim's interest to report a workplace assault to the police.
The 3 key advantages of filing a police report
There are three key advantages to filing a police report before filing a civil lawsuit:
- Going to the police tells the victim's employer that the charges should be taken seriously,
- Reporting the crime can prevent the defendant's lawyer from using the lack of a police report to question the victim's credibility, and
- If the defendant is convicted in a criminal trial, it can extend the California statute of limitations -- the period during which a crime victim can file a civil lawsuit for damages.
No. Legally, a victim does not have to report an assault to his or her employer in order to be able to sue for damages. But it is usually a good idea.
Most employers' human resources departments take charges of assault seriously. And failure to lodge a complaint with an employer may cast doubts on the accuser's credibility.
But not all companies are big enough to have human resources departments. It should also be noted that human resources departments work for the employer, not the employee. The goal of HR is usually to resolve disputes quickly and quietly.
Some employers are more committed than others to a full investigation of employee abuse complaints. Some have even begun using independent third-party investigators in an effort to make the process more fair and transparent.
It is usually worthwhile for someone assaulted by a co-worker to file a complaint with the employer. Filing a complaint allows a victim to:
- Be the first to provide his or her version of events to the employer;
- Take advantage of any benefits -- such as free counseling -- offered by the employer;
- Prevent future accusations that the victim was making things up; and
- Encourage witnesses to cooperate in getting to the bottom of what happened.
Filing a complaint also gives the employer the opportunity to take steps to keep the victim and others safe at work.
Yes. California permits victims of an assault to sue the person who assaulted them.
In some cases, the person who committed the assault may be the only one liable. But most employees do not have the same assets as an employer. And employees are less likely to have insurance to cover such acts.
If there is a chance the employer is liable, it is usually worthwhile to make a claim against the employer as well as the employee who committed the assault.
There are two situations in which an employer can be held liable for a coworker assault:
- The employer knew or should have known that the employee was a risk to others; or
- The employer is legally liable because the employee was just doing his or her job.
Let's take a closer look at each of these situations.
California law makes employers liable if they are negligent in hiring, retaining or supervising a potentially dangerous employee.
To hold an employer liable under this theory, a plaintiff must show that:
- The employee who committed the assault was unfit or incompetent to do the work for which he or she was hired;
- The employer knew (or should have known) that the employee posed a danger of harm to others; and
- Because of the employee's unfitness or incompetence, the plaintiff was harmed.1
Examples of negligent hiring, retention and supervision:
Negligent hiring: A ride-sharing company fails to conduct a criminal background check of a driver as required by law.2 A background check would have shown that the driver has a recent conviction for domestic violence.
Negligent retention: A restaurant ignores complaints that its star chef has been slapping members of the kitchen staff.
Negligent supervision: A security company ignores its own rule that a guard with less than one year of experience should never be alone on a hazardous job site.
In most cases, employers are not responsible for the intentional wrongful acts of their employees.
For instance, if a department store clerk assaults a customer, the store would not be liable unless it had reason to know the clerk was dangerous. This is because assaulting people is not something an employer expects its clerks to do.
However, in some cases, an employer does expect its employees to act with force or the threat of force. In such cases, the employer may be "vicariously" (indirectly) liable for its employee's actions. This is known as respondeat superior law.
"Respondeat superior" is a Latin phrase meaning "let the master answer." It means that an employer should answer for the actions of its employees when the employee was acting in furtherance of the employer's business.
When does "respondeat superior" apply to a co-worker assault?
Respondeat superior law applies when:
- An employee is acting within the ordinary scope of his or her employment,
- The employee's actions were in furtherance of the employer's legitimate business objective, and
- As the result of the employee's actions, someone was injured.
In most cases, respondeat superior will not apply when an employee assaults a co-worker. This is because assaulting co-workers is not within the ordinary scope of most people's jobs.
But in some cases, physical force is a part of an employee's job. Examples of jobs in which force or the threat of force is appropriate include (without limitation):
- Security guards,
- Nightclub bouncers,
- Sports coaches, and
- Professional athletes.
Even when force is within the scope of an employee's job, however, it is not always an excuse for assault. If the employee uses too much force, an employer may be liable under respondeat superior law.
Example: Carl works as a bartender for a California nightclub. One of the other bartenders, Dee, gets drunk one night and becomes physically abusive toward Carl. When Carl pushes Dee in the chest to defend himself, one of the nightclub's security guards reacts by punching Carl.
Using force to protect patrons and workers is within the ordinary scope of a security guard's duties. Doing so is in the interest of the employer. Therefore, the employer may be liable under the doctrine of respondeat superior if the security guard's actions constituted an assault.
Workers in California are protected against retaliation for complaining about workplace assault.
This protection is set forth in California's “Whistleblower Protection Act” (Sections 1102.5 to 1105 of the California Labor Code). The Whistleblower Protection Act makes it illegal for a company to retaliate against an employee for disclosing an assault to:
- A government agency,
- Law enforcement, or
- The person or department at a company who has the authority to investigate, discover, or correct legal violations.3
Remedies for violation of California's Whistleblower Protection Act
Companies retaliating against an employee in violation of the Whistleblower Protection Act can:
- Be fined a civil penalty of up to ten thousand dollars ($10,000) per incident, and/or
- Be tried for a misdemeanor and sentenced to an additional fine and/ or up to a year in county jail.4
Unfortunately, the Whistleblower Protection Act is no guarantee that a company will not retaliate. It does, however, provide a remedy in the event that it happens.
For more information on filing a complaint about retaliation, please visit the California Department of Industrial Relations, How to file a retaliation/discrimination complaint.
California government officials generally do not question someone's immigration status or report it to other government agencies while investigating an assault claim. The State of California is more interested in rooting out dangerous employees than in punishing people who are here without documentation.
Undocumented aliens who feel they have been retaliated against for reporting a workplace assault should contact:
- An experienced California immigration attorney,
- The California Labor Commission, and/or
- The California Department of Industrial Relations.
Unfortunately, yes. Some perpetrators will bring a suit for defamation in the hope of silencing their victims.
Victims should know that truth is an absolute defense to charges of defamation in California. Additionally, depending on the situation, wrongfully trying to silence a victim with a lawsuit may constitute an abuse of process.
However, the costs of making a wrongful defamation claim go away can be expensive.
For this reason, we recommend that employees discuss their situation with an experienced California injury lawyer as soon as possible after an assault has occurred.
Yes. Under worker's compensation laws, a workplace assault is considered a work-related injury
The advantage of worker's compensation is that it will cover most damages right away. Civil lawsuits can sometimes take years to work their way through the system.
However, recovery for lost wages is lower -- usually about 2/3 of the employee's pay. Furthermore, worker's comp does not let victims recover for pain and suffering damages (other than to receive therapy).
It should also be noted that workers compensation is usually an exclusive remedy. This means that if a claim is covered by worker's comp, the victim will not also be able to sue the employer.
How can an assaulted worker initiate a worker's comp claim?
To start a worker's compensation claim, an employee needs to file a “first report of injury” with the employer. The employer will provide the form when the employee reports the injury. The form will ask for information about the incident, including the date, time, and details of what happened.
For more information, you may wish to read the California Department of Industrial Relations, "How to file a claim."
Assaulted by a co-worker in California? Call us for help...
If you or someone you know was assaulted at work, we invite you to contact us for a free consultation.
Call us at 855-LAWFIRM or fill out the form on this page to speak with an experienced injury lawyer about your case.
We have office throughout California to serve your needs, including in Los Angeles, Orange, Riverside, San Bernardino, Ventura and San Diego counties.