A Quick Guide to the “Willful Misconduct” Defense in Virginia Worker’s Compensation Law

This article by attorney Peter Irot appeared on Gentry Locke’s “Virginia OSHA Law News” blog. The “Willful Misconduct” defense in Virginia workers’ compensation law is similar to the “Employee Misconduct” defense in OSHA matters. A workplace injury may lead to both OSHA and workers’ compensation proceedings. Therefore, it is useful to understand the elements and requirements of both defenses — of which there is much overlap.

Something that nearly every Virginia employer will have to consider sooner or later is whether it has a “willful misconduct” defense to a workers’ compensation claim. In fact, many employers and insurers tend to approach most workers’ compensation claims as the result of misconduct, reasoning that if the employee had not been doing something he shouldn’t have, he would not have been injured in the first place.

Virginia workers’ compensation law is more complicated than that. But the savvy employer can help himself by building a willful misconduct defense before the workplace injury occurs by making absolutely sure to: 1) create clear, reasonable safety rules; and 2) strictly enforce those rules.

The section of the Virginia Code (65.2-306) governing willful misconduct reads specifically, “no compensation shall be awarded to the employee . . . for an injury . . . caused by . . . the employee’s willful misconduct.”

Virginia courts have interpreted this sentence to require a high burden for the defense. Negligence—even gross negligence—does not suffice; proving willful misconduct is a matter of showing the employee had a “wrongful intention” to do something he knows is illegal or against his employer’s reasonable safety rules. Making it even more difficult for employers, they bear the burden of proof to show willful misconduct.

Thus, an employee can be completely heedless of safety in general, even endanger others as well as himself, and still incur a compensable injury so long as the employer cannot prove that the employee did not have a “wrongful intention” to violate a law or a reasonable safety rule. Moreover, this “wrongful intention” requires “premeditation” and “determination” to perform the forbidden act.

Proving to a commissioner or judge what existed in an injured employee’s mind to the point of “premeditation” is one of the most difficult tasks workers’ compensation defense attorneys have to tackle. But there are ways the employer can make the defense much easier to prove. Specifically, putting all safety rules in writing and requiring every employee to initial each page of the rules booklet, and sign it at the end with an affirmation that the employee has read and understands the rules, goes a long way to support the defense at a workers’ compensation hearing. It is difficult for an employee to claim ignorance of a rule when confronted with his own initials and signature on the safety rules themselves.

(Side note: employers should be sure to provide the rules in every necessary language. The Virginia Workers’ Compensation Commission will not deprive an employee who only speaks Spanish of compensation for his injury when the only rule book he signed was in English.)

Enforcing the rules is just as important as having rules. The law allows employees to overcome a willful misconduct defense by showing that the rule in question was not “kept alive” by “bona fide enforcement.” Thus, if an employer makes a practice of allowing employees to “skate by” when breaking rules, the employer cannot later rely on those rules to support its defense.

A paper trail helps when enforcing rules. Most attorneys for workers’ compensation claimants obtain relevant safety documents from employers during the course of a claim. The defense is supported by documentation that includes records of employees being disciplined or terminated for violating safety rules.

Accordingly, to be able to rely upon a willful misconduct defense, the savvy employer must have a set of clear and reasonable safety rules that the employer ensures every employee reads, signs, and knows. That same employer will enforce those rules, and keep detailed records of that enforcement. By the time a workers’ compensation claim is made for an accident that could have been prevented by following safety rules, the savvy employer may be able to mount a willful misconduct defense.