February 06, 2017 BY Def Admin
Willful Misconduct: Practical Considerations for Employers
The willful misconduct defense is one that is notoriously difficult to successfully assert, but there are a few actions that an employer can and must take before an accident even occurs in order to protect an employer/insurer’s ability to assert this defense in a claim involving employee misconduct. Under Georgia law, the Employer has an affirmative defense to compensation in certain situations of misconduct under O.C.G.A. § 34-9-17. Note that when you are asserting an affirmative defense, you are alleging a defense to compensation and the burden of proof shifts to you as the Employer. O.C.G.A. § 34-9-17(a) provides, “ No compensation shall be allowed for injury or death due to the employee’s willful misconduct, including intentionally self- inflicted injury or refusal to use a safety appliance or perform a duty required by statute.” While the statute itself does not explain exactly what constitutes willful misconduct, the Georgia Supreme Court and the Georgia Court of Appeals have provided more clarity. However, the main purpose of this article is not to provide an in-depth analysis of all the case law on the issue of willful misconduct, but rather to provide a brief overview of the applicable law as it currently stands and provide practical recommendations of policies and practices for employers to implement on the front end to aid in a willful misconduct defense before an injury even occurs.
OVERVIEW OF THE LAW
Georgia case law provides guidance on what exactly the Employer is required to show in order to prevail on a defense based on willful misconduct. In Aetna Life Ins. Co. v. Carroll, the Georgia Supreme Court explained that it is not enough for the employer to show that the employee violated a rule explaining that, “The mere violation of rules, when not willful or intentional, is not willful misconduct. If the workman is acting within the scope of his employment, mere disregard of a rule or order does not become such misconduct, unless the disobedience be in fact willful or deliberate, and not a mere thoughtless act, done on the spur of the moment.” The Court further explained that “willful misconduct is more than mere negligence or even gross negligence. It involves conduct of a quasi- criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (1929).
A recent Georgia Court of Appeals case, Burdette v. Chandler Telecom, LLC, illustrated Employer’s burden to prove not only that the Claimant had knowledge of the rule and violated the rule, but also added a requirement that the Claimant knew the violation of the rule was likely to lead to an injury. In Burdette, the Claimant was injured after descending from a cell tower using a controlled descent method rather than climbing down as the Employer required. Even though the evidence was clear that the Claimant knew the Employer’s rule, was reminded of the rule against using controlled descent just before the accident, and decided to break that rule, his conduct did not rise to the level of willful misconduct. In reaching this decision, the Court of Appeals relied on testimony that the Claimant had successfully used the controlled descent method in the past, the Employer allowed employees to descend in that manner in the past, and the Employer’s policy still allowed for controlled descent in certain situations. Therefore, while the Claimant knew of the rule and decided to break it, he did not do so knowing that it was likely to lead to an injury. Based on this Court of Appeals decision, the standard for willful misconduct requires that the employee willfully break a rule with the knowledge that it is likely to lead to an injury. Burdette v. Chandler Telecom, LLC, 336 Ga. App. 190 (2015). Note that the GA Supreme Court has heard arguments in this case to determine whether this is the correct standard based on Aetna Life Ins. Co. v. Carroll, meaning this standard may or may not apply in future cases.
Based on the standards outlined above, it is clear that what the injured employee knew at the time of the injury is crucial. Injured employees may say that they “forgot” about the rule, or even were not aware that there was an applicable rule or directive in place, in order to argue that failure to comply was inadvertent and that their actions were not willful. The more evidence you can obtain to show that it wasn’t mere inadvertence or forgetfulness, the stronger your case will be. While prevailing on a willful misconduct defense is ultimately highly dependent on the facts of any case, there are a few things that employers can do before any injury occurs to ensure that a willful misconduct defense is possible.
First, employers should make sure that there are clear safety rules and directives in place. This may seem obvious, but if there is no safety rule or directive, there is no misconduct. Furthermore, if those rules and directives are not clear and constitute only vague policies, the employee will be able to argue credibly that he or she did not understand what the rule was and, therefore, did not willfully break the rule or fail to follow the directive.
Second, make sure employees know the rules and directives. This would include providing copies or written rules to new employees and having the employees sign off saying that they read and understand the applicable rules. While there is no requirement that the rules and directives need to be written, providing written rules will certainly help the employer/insurer meet their burden in proving willful misconduct. In addition, employers should hold regular safety meetings with all employees to review existing rules and to inform employees of any changes or new rules or directives.
Third, employers should do what they can to counter any assertion that the employee “forgot” the rule or that his or her action in breaking the rule was inadvertent or negligent. This is a highly subjective standard, and it is impossible to prove the employee’s intent at any given time. However, holding regular safety meetings (as mentioned above) and posting applicable rules throughout the facility can help show that the Claimant should have been reminded of the rule that they broke. In addition, supervisors should enforce the rules and there should be consequences for employees who break safety rules and not acquiescing when employees are breaking rules or failing to follow directives. If supervisors are acquiescing when employees are not following the safety rules, an injured employee will likely be able to argue that they forgot the rule was even in place, and an ALJ may be reluctant to find that the employee’s actions constituted willful misconduct if the employer never actually enforced the rule. Furthermore, if employees break the rule often and are not injured, it also allows an injured employee to argue that breaking the rule was not likely lead to an injury since the rule was often broken without any injury occurring.
Finally, based on the current law under the Court of Appeals decision in Burdette v. Chandler Telecom, employers should educate employees on the danger in failing to comply with the safety rule in place. For instance, at safety meetings, rather than just going over the rules, remember to explain why they are in place and how an injury could occur as a result of violating the rule or directive. As noted above, part of this will also be strictly enforcing the rules in place because, if an employee or co- workers testify that they had broken the safety rule in the past and the employer turned a blind eye to the violation of the rule and no injuries occur, the employee will argue that breaking the rule or failing to follow the directive was not likely to sufficiently likely to lead to an injury and, therefore, it did not amount to willful misconduct.
While the affirmative defense of willful misconduct is a notoriously difficult defense to meet, it is nearly impossible to successfully assert the defense without taking steps on the front end before an injury occurs. Employers should set clear safety rules and directives, make sure employees know and are reminded of the safety rules and directives, and educate employees on the dangers in breaking or failing to follow the rules and directives. These actions will not only help in reducing accidents based on failure to follow safety rules, but they will also lay some of the necessary groundwork to meeting the burden of showing that an employee’s actions at the time of the accident constituted willful misconduct.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley