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Workers Compensation Preemption

The workers compensation system provides the exclusive remedy against an employer for an employee who is injured at work, except when it does not. Here, we explore the extent to which the workers compensation remedy preempts tort and other remedies against an employee’s employer and fellow employees.

Through the “compensation bargain,” “the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” Shoemaker v. Myers, 52 Cal. 3d 1 (1990). For injuries within the scope of the compensation bargain, the employee may only recover what is allowed under the Workers Compensation Act, even if the Act does not provide compensation for the employee’s particular injury. (See Livitsanos v. Superior Court, 2 Cal. 4th 744 (1992) (emotional distress claims barred even if no award available in the workers compensation system). The Act also bars claims against fellow employees. Cal. Lab. Code section 3601.

The Workers Compensation Act itself provides some exceptions. For example, one employee may sue another for injuries resulting from a “willful and unprovoked physical act of aggression.” Cal. Lab. Code section 3601(a)(1). The Act does not preempt claims for injuries resulting from  the employer’s “knowing removal of, or knowing failure to install, a point of operation guard on a power press.” Cal. Lab. Code section 4558.

The California Supreme Court has also recognized a broad exception for claims deemed “not stemming from a risk reasonably encompassed within the compensation bargain.” Shoemaker v. Myers, 52 Cal. 3d 1 (1990). This exception allows employees to sue their employers for violations of statutory provisions, such as the Fair Employment and Housing Act (City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1998)) and whistle blower statutes (see Shoemaker).

The exception also permits pursuit of some tort remedies. For example, employees may bring claims for wrongful termination in violation of public policy (Shoemaker), defamation (Howland v. Balma, 143 Cal. App. 3d 899 (1983)), and unlawful imprisonment (Fermino v. Fedco, Inc., 7 Cal. 4th 701 (1994)).

Contact Information
  • Pasadena Office
    3020 East Colorado Boulevard
    Pasadena, California 91107
    Phone: 626-449-2300
    Fax: 626-449-2330
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