Injured on the job in California. Can I sue my employer?

An employee injured on the job in California is generally limited to seeking recovery by filing a workers compensation claim. This means he or she cannot sue the employer in civil court. 

However, there are five primary exceptions in which an employee can sue the employer for a workplace injury. These are situations where:

  1. the injury is caused by a willful physical assault by the employer,
  2. the injury is aggravated by something related to employment that the employer fraudulently conceals,
  3. the employee is injured by a product made by the employer but the employee is not acting as an employee when he gets injured, known as “dual capacity,”1
  4. the injury is from an improperly set up power press machine,2 or
  5. the employer does not carry workers' compensation insurance when the injury occurs.3

In this article, our California personal injury attorneys will explain:

1. What's the difference between workers' compensation and a civil lawsuit?

Work injuries are covered by a completely separate system than the civil court.4 It is generally the only remedy for an employee injured at work. This system gives the employee some advantages, but at a cost. It is no fault, meaning the employee does not have to prove the employer was to blame. In return for swift and nearly certain benefits, the employee gives up the right to sue the employer.5

The employer is required to have workers' compensation insurance. This ensures that every injured employee can obtain timely benefits. The employer has to pay the cost of their insurance policy. Anything paid to an injured worker is usually the responsibility of the insurance company.

Another cost to the employee is that the workers' compensation system limits your benefits to wage loss, medical bills, diminished earning capacity if the injury results in permanent physical or mental impairment, death benefits, and retraining benefits.6 The benefits provided are limited by regulations by the Department of Industrial Relations7 and contained in the Permanent Disability Rating Schedule.8

However, there are certain situations where an employee can sue their employer in civil court, meaning they can bypass the workers' compensation system. This may allow a larger award, which could include pain and suffering, punitive damages, and loss of consortium (companionship).

2. When can an employee sue their employer?

When the employer does something that isn't part of the working relationship and the employee is injured, the system doesn't apply, and the employee has the right to sue the employer in civil court.

Moving the case to civil court may produce a bigger payout but the employee may lose the no-fault presumption, meaning they may have to prove the employer did something wrong. The potential payout is greater, but the burden of proof is higher. Additionally, there is no double recovery,9 meaning any recovery in one court will be credited against the other.

Specifically, an employee can sue their employer in civil court in the following five situations:

2.1 Injury from Intentional Acts

Injury from intentional acts occurs when:

The employee's injury or death is proximately caused by a willful physical assault by the employer."10

What is assault by the employer?

An injury is "accidental" for the purposes of workers' compensation unless it results from "a conscious and deliberate intent (by the employer) directed to the purpose of inflicting an injury."11 You have to show that the employer meant to do something, such as a physical act, and that they did it to injure you. Without these two factors, it's considered a work injury and you have to stay within the workers' compensation system.12

What if the employer told another employee to assault you?

An assault at work may come from a coworker. Lawsuits in California for assaults by coworkers are not mentioned in the rule above. In order for it to apply, the employer must have ratified the conduct of the employee. Ratification basically means that the employer authorized the action of their employee.13 It's as if the employer did it themselves.14

If the employer did not ratify the conduct, they are not responsible for the acts of an employee. Even though there is a concept called respondent superior, where an employer could be responsible for the acts of their employees, it does not apply here. Even if another employee intentionally attacks and injures another employee for no reason, the injured party/employee cannot sue the employer unless they can show the employer ratified it.15

The employee in this situation can both file a workers' compensation claim against the employer and sue the employee who assaulted them.16

2.2 Injury from fraudulent concealment

Fraudulent concealment is:

Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment. In such a case the employer's liability shall be limited to those damages proximately caused by the aggravation.

The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.”17

What is fraudulent concealment?

Employees may be exposed to certain conditions that the employer both knows about and hides from the employee. This generally applies to employees working with hazardous chemicals. An employer that knows an employee was exposed to a hazardous chemical and has contracted a disease should tell the employee.18 If not, the employer is basically committing fraud, meaning they are failing to disclose facts they have a duty to disclose.19 Because of this bad act, they can be sued by the employee in civil court.

However, the code section “does not impose liability on an employer for injuries resulting from either the failure to provide a safe work environment or from failure to warn of unsafe premises.”20 Both of these are considered part of normal work and are handled through the workers' compensation system.

Employers do not have to explicitly misrepresent a fact for fraudulent concealment to occur. They simply have to know about the existence of the danger.21 Their silence as to the danger is fraudulent concealment.

What is a typical case of fraudulent concealment?

Fraudulent concealment usually occurs when chemicals an employee unknowingly works with are harmful or when they are aware of the chemical but not its harmful effects. Common substances include asbestos, arsenic, solvents, or chemicals. The employer may intentionally hide these facts, believing that the employee will never connect their injury or disease to anything from work.

The employee may have a difficult time proving the employer had the right level of knowledge. It is unlikely there will be documentation that an employer knows a chemical an employee is working with is harmful. Just because an employee reports an injury that may be related to some exposure does not mean the employer knows anything about a potentially hazardous chemical cause.22

What is meant by the “injury is aggravated”?

Even if the employer conceals the danger, the original injury is still a workers' compensation injury. After that, it can become an aggravation as the employer may know the cause, know of the injury, and conceal it. The continued exposure to the hazardous condition and lack of knowledge prevents an employee from receiving treatment and being able to stop working under hazardous conditions.

For example, an employee may be exposed to a cancer-causing chemical. If the employer fraudulently conceals this from the employee, the exposure will continue, and instead of minor health issues such as a skin condition, the employee develops cancer. The employee was not afforded an opportunity to seek treatment or remove themselves from the exposure before the condition worsened.23

2.3 Dual Capacity

Dual capacity means:

The employee's injury or death is proximately caused by a defective product manufactured by the employer, and sold, leased, or otherwise transferred for valuable consideration to an independent third person; and that product is thereafter provided for the employee's use by a third person.”24

When is an employee not an employee?

Just because you work somewhere does not mean that every interaction with your employer is part of that relationship. The employer can act in a “dual capacity,” as both the employer and also as having a separate relationship with the employee. For example, if you are injured using a defective device manufactured by the employer that is also for sale to the general public for similar use, you are treated like a customer, as opposed to an employee.25 This change in the relationship gives you the right to sue your employer.

What is a “product” and “employee use”?

An employee fixing a machine manufactured by their employer but owned by a third party would not qualify as employee use. They are not actually using the machine but simply working on it. However, a tool given to the employee by a third party to work on the machine may qualify.26

2.4 Injury from a Power Press

A power press injury occurs when:

  • the employee s injury or death is proximately caused by the employers knowing removal of, or knowing failure to install, a point of operation guard on a power press, and
  • this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.”27

What is a power press?

A power press is a material-forming machine designed for use in the manufacture of other products.28 It “entails four elements. The power press itself is a machine. It is a machine that forms materials. The formation of materials is effectuated with a die. Finally, the materials being formed with the die are being formed in the manufacture of other products.”29

The press may have a point of operation guard to prevent injury. Point of operation guard means anything that keeps a worker's hands outside the point of operation.30 If the guard is provided or required by the manufacturer, and the employer knows this but fails have the guard on the press and the employee is injured, that employee can sue the employer. 31

The ability to sue the employer in this situation is due to the power of these machines and the consequence of not having a guard. It is “to protect workers from employers who willfully remove or fail to install appropriate guards on large power tools. Many of these power tools are run by large mechanical motors or hydraulically ...These sorts of machines are difficult to stop while they are in their sequence of operation. Without guards, workers are susceptible to extremely serious injuries … [therefore, there is liability] for removing guards from powerful machinery where the manufacturer has designed the machine to have a protective guard while in operation."32

The employee can try to establish that a wide range of machines they may use could be considered a power press in order to sue their employer under this section. However, devices such as a small hand-held circular saw would not be considered a power press.33

What does the employer have to know?

The employer has to know the machine needs a guard. They would only know this if the manufacturer told them. The employer has to take the specific action of not installing the guard, removing it, or telling someone else to do this in order to be held liable.

This section is not triggered if the employer never receives specifications from the manufacturer that a guard is necessary on the power press, fails to comply with OSHA standards,34 just has knowledge that the guard had been removed, or if they should have known the guard was removed but never checked.35 There must be facts that establish actual knowledge.36

2.5 The employer does not have workers' compensation insurance

As all employers are required to have insurance:

If any employer fails to secure the payment of compensatory damages, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.37

How do you know the employer does not have insurance?

Employers are required to have information posted in the workplace as to who to contact if you have a work injury.38 Also, an employee has the right to ask for the name and contact information of the workers' compensation insurance carrier. The carrier will confirm that they did cover the employer on the date of an injury. If not, the employee can pursue a claim through workers' compensation proceedings and also sue the employer in a civil action.39

When the employee sues the employer in this situation, the employee does not have to prove that the employer was at fault. It is the employer's responsibility to prove that they were not. Also, the employer cannot say that the employee was partially at fault or that another employee was at fault. This is the employer's penalty for not having workers' compensation insurance.40 

When an injured worker files a workers' compensation claim and the employer is uninsured, a state agency, the Uninsured Employers Benefit Trust Fund, may step in and pay benefits awarded.41 This is so the employee can receive benefits in a timely fashion.

3. How likely is it that I will be able to sue my employer?

Situations that have permitted the employee to sue the employer for an injury at work “have involved conduct of an employer having a 'questionable' relationship to the employment, an injury which did not occur while the employee was performing service incidental to the employment and which would not be viewed as a risk of the employment or conduct where the employer or insurer stepped out of their proper roles.”42

Most injuries at work will not fall under any of these exceptions. Courts are reluctant to expand the ability for an employee to sue an employer when the option of using the workers' compensation system is available to them.43

Call us for help...

If you were injured on the job in California, feel free to contact us at Shouse Law Group for further assistance. If your case is in Nevada, please visit our page on lawsuits for workplace injuries in Las Vegas Nevada


  1. Cal. Lab. Code § 3602(b)(1)-(3)
  2. Cal. Lab. Code § 4558
  3. Cal. Lab. Code § 3706
  4. Cal. Const. art. XIV §4
  5. Iverson v. Atlas Pacific Engineering (1983) 143 Cal. App. 3d 219, 223
  7. Cal. Lab. Code   § 4600
  9. Cal. Lab. Code § 3709
  10. Cal. Lab. Code § 3602(b)(1)
  11. 2A Larson, Workmen's Compensation Law (1992) § 68.13, p. 13-10
  12. Soares v. City of Oakland (1992) 9 Cal. App. 4th 1822, 1828
  13. Rakestraw v. Rodrigues (1972) 5 Cal.3d 67, 73
  14. Iverson v. Atlas Pacific Engineering (1983) 143 Cal. App. 3d 219,
  15. Fretland v. County of Humboldt (1999) 82 Cal. Rptr. 2d 359, 364
  16. Id.
  17. Cal. Lab. Code § 3602(b)(2)
  18. Id. at 310
  19. Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 309
  20. Hughes Aircraft Co. v. Superior Court (1996) 44 Cal. App. 4th 1790, 1795
  21. Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 311
  22. Foster, supra at 309
  23. Palestini v. General Dynamics Corp. (2002) 120 Cal. Rptr. 2d 741, 754
  24. Cal. Lab. Code § 3602(b)(1)-(3)
  25. Shields v. County of San Diego (1984) 155 Cal. App. 3d 103, 109
  26. Behrens v. Fayette Manufacturing Co. (1992) 4 Cal. App. 4th 1567, 1575
  27. Cal. Lab. Code § 4558
  28. Cal. Lab. Code § 4558
  29. Ceja v. JR Wood, Inc. (1987) 196 Cal. App. 3d 1372, 1376
  30. Bingham v. CTS Corp. (1991) 231 Cal. App. 3d 56, 59
  31. Cal. Lab. Code § 4558
  32. Ceja, supra at 1377
  33. Id. at 1376
  34. Swanson v. Matthews Products, Inc. (1985) 175 Cal. App. 3d 901, 906
  35. Cal. Lab. Code § 4558(a)(6)
  36. Flowmaster, Inc. v. Superior Court of Sonoma City (1993) 16 Cal. App. 4th 1019, 1031
  37. Cal. Lab. Code § 3706
  38. Cal. Lab. Code § 3550
  39. Cal. Lab. Code § 3715(a)
  40. Devens v. Goldberg (1948) 33 Cal. 2d 173, 176
  42. Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 161
  43. Id. at 160-161

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