How Can an Injured Worker Address Willful Misconduct by an Employer?

 Posted on October 29, 2026 in Workers' Compensation

Getting hurt after warning your employer about a danger at work raises difficult questions. You could face a long recovery from an injury the company had a chance to prevent.

California provides extra compensation when an employer’s serious and willful misconduct causes a work injury. Carelessness alone does not meet that standard. If you believe your employer’s misconduct caused your injury in 2026, our Santa Clara County, CA workers’ compensation attorney will explain your options.

What Counts as Serious and Willful Misconduct by a California Employer?

Serious and willful misconduct goes beyond making a mistake or failing to use reasonable care. It involves deliberately causing harm or acting with knowledge that serious injury is likely. Recklessly ignoring the likely harm also meets the standard.

For example, a manager might order workers to use a machine despite knowing its missing guard makes serious injury likely. That decision could support a claim. A missed repair, without that knowledge or reckless disregard, does not establish the same level of misconduct.

The law also limits whose actions count. The misconduct must come from the employer or a person in a management role covered by the law. A coworker’s unsafe act alone does not establish this claim against the employer.

Does a Cal/OSHA Violation Prove Serious and Willful Misconduct?

A Cal/OSHA violation helps show that a safety rule was broken, but it does not establish every part of a serious and willful misconduct claim. The workers’ compensation judge must also examine how the violation caused your injury and what management knew about the danger.

Under California Labor Code Section 4553.1, the claim must identify the employer or manager responsible. You must show that this person knew the rule and the conditions that made it apply, yet violated it. Alternatively, the danger must have been obvious and likely to cause serious injury, with a reckless failure to correct it.

What Extra Compensation Is Available for Employer Misconduct in California?

California provides a 50 percent increase in workers’ compensation when serious and willful misconduct causes the injury. For example, if the benefits used in the calculation total $100,000, the increase would be $50,000. Your attorney must check which benefits count before estimating the amount.

The increase is based on compensation available under workers’ compensation law. It is not a separate payment for pain and suffering. Other payments, such as certain public employee leave benefits, do not automatically belong in the calculation.

How Do You File a Serious and Willful Misconduct Claim in California?

You must file a separate petition in an open Workers’ Compensation Appeals Board case. If you don't have an open case, you must first file an Application for Adjudication of Claim. This asks the Board to handle your workers’ compensation dispute.

The petition must describe what the employer did and why it meets the misconduct standard. A claim based on a safety violation must identify the specific rule. Simply stating that the workplace was unsafe is not enough.

You must sign a statement confirming that the petition is true and send copies to the required parties. The filing also needs proof that those copies were sent.

If the claim remains disputed, a workers’ compensation judge decides it at a hearing. You do not pursue this increase through an ordinary personal injury lawsuit.

What Records Help Prove an Employer’s Serious and Willful Misconduct?

Useful records show what management knew before you were hurt and what it did about the danger. These include:

• Written complaints warning about the hazard
• Messages telling workers to continue unsafe work
• Inspection reports or earlier safety citations
• Repair requests that were left unresolved
• Names of people who heard management’s instructions

Include the dates and names involved. A warning sent before the accident helps show prior knowledge. A complaint made afterward does not establish what the employer knew earlier.

Keep records you have lawful access to. Tell your attorney which documents are missing so they can be requested through the case.

How Long Do You Have to File an Employer Misconduct Claim in California?

Under California Labor Code Section 5407, you have 12 months from the injury date to begin proceedings for this increase. Benefit payments do not extend the deadline. Filing for ordinary workers’ compensation benefits does not extend it either. The misconduct claim needs its own timely filing.

You do not need to finish treatment before pursuing the petition. Have the deadline checked early rather than wait for your recovery or a safety investigation to end.

Contact Our Santa Clara County, CA Workplace Injury Lawyer

Ignoring a known danger can leave workers facing injuries that should have been prevented. At Raul Martinez Injury Law Firm, our attorney will examine your employer’s actions and help you seek any additional compensation you qualify for.

Attorney Raul Martinez has over 15 years of legal experience. To schedule a free consultation, contact our Morgan Hill, CA workers’ compensation attorney or call 408-848-1113.