PEO Horizon: A Publication of

IN THIS ISSUE: Employer Liability Under Workers’ Compensation Laws for Injuries Sustained By An Employee when Acting Outside The Scope of Employment

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In Illinois an employee whose job it was to clean a conveyor belt was injured when he started the belts in operation with no authority to do so. In Oregon, an employee (who must have just received a raise or promotion!) skipped back to her office from her supervisor's office and tore her Achilles tendon. In New York a newspaper delivery boy who used his bicycle to pick up papers and make deliveries, hit a bump and fell on the way to pick up his papers. A coal miner died when he used a negligent and reckless method to descend into a mine shaft. Which of these injuries are compensable and why?

Misconduct of an employee, whether negligent or willful, is not at issue in compensation law unless a specific act on the part of the employee deviates from the normal course of employment, or it is a statutorily created defense in a particular jurisdiction.

Statutes an Employee’s Misconduct Might Be Subject to

There are three types of statutes that an employee’s misconduct might be subject to. The most common kind of statute contains no affirmative defenses based on employee misconduct, except perhaps self-injury and intoxication. A second type of statute makes the employee’s willful misconduct a defense. A third type of statute makes certain types of misconduct, such as failure to use safety devices or violation of law, either a complete defense or grounds for a reduction in the award.

If for example, an employee deliberately removes his safety goggles in violation of regulations in a non-affirmative defense state, this act may or may not fall outside the course of his employment depending upon the circumstances. In a state where there is statutory language expressly stating that failure to use safety devices creates a complete defense making the injury non-compensable. This would also be true in a state that denies compensation statutorily to employees whose misconduct is intentional.

The basic test of coverage however, is relation of the injury to the employment. The compensation act looks at the injuries in terms of whether they ''arise out of'' and ''are in the course of'' the injured party’s employment. Within that circle there is compensation, outside there is not. For the most part there is no distinction between the negligent fault and willful fault of the employee, since fault in and of itself has no bearing on the process of determining compensability.

Distinction Between Main Work and Incidental Activities

The line between compensable and non-compensable injuries is distinguished by prohibited activities that do not constitute a departure from the course of employment and those that do. More specifically this division draws a line between prohibited methods of doing the employee's regular job, and prohibited activities outside of or, at best, incidental to the main job. Those acts would include acts for personal benefit, personal comfort activities, going to and from work, or doing another person's work.

In some jurisdictions this distinction may apply to misconduct falling short of prohibited activity and consisting merely of unreasonable or needlessly dangerous conduct. In connection with personal comfort cases, it has already been shown that a number of jurisdictions will exclude such activity from the course of employment if the method or place chosen is unreasonably and unnecessarily hazardous.

Similarly, cases can be found holding that the usual coverage of the trip to and from work is forfeited if the route or method chosen is unconventional and perilous. So, a man who has been provided safe transportation and refused it has been held outside the course of his employment when, unknown to the driver, he jumped into the back of a truck and was trying to climb round to the cab when injured.

The same conclusion has been reached when the activity consists of doing another person's work. In the Herald Printing Company case for example, at the time of the accident the injured employee was assisting an independent contractor, quite unnecessarily, since the contractor had employees of his own standing by. In a Kentucky case, an employee was asked to wait at a construction site after other workers were dismissed. While waiting, he jumped into a flooded creek where he was working, attempted to ride on a large log, and drowned. Compensation was denied.

Where the employee assumes to undertake a dangerous act, which is altogether outside of his scope of employment, the risk undertaken is not incidental to the employment. For example, a worker who was angry when his wheelbarrow tipped over slammed his hand against a van door, breaking a bone. The defendant argued that the injury was not accidental and did not arise out of the employment. The Supreme Court upheld a denial of benefits, as resulting from "conduct, which unreasonably or unnecessarily increased the risks of injury."

The injury an employee sustained while crossing a conveyer belt to place a frozen pot pie in an industrial oven arose neither out of, or in the course of his employment, since (a) the employee voluntarily and unexpectedly exposed himself to an unreasonable, unnecessary risk and (b) the employer had no knowledge of, or had he acquiesced in, such a practice or custom.


So what about the cases referred to in the introduction? How did the courts rule?

The employee who was injured when he started the conveyor belts without authority to do so did not receive any benefits. What about the impatient guy waiting at the construction site after everyone else had gone home who died when he jumped onto a log in a flooded creek? His heirs received no compensation. What happened with the girl who skipped back to her office and injured her Achilles tendon? The defendant argued that she should not be entitled to collect benefits because skipping was not her usual way of ambulating around the office. She was originally denied benefits, but won them on appeal.

The case with the paperboy was relatively straightforward. He needed his bike to do his work. Picking up the papers was in the course of his employment, so his injuries were compensated. The family of the coal miner who was negligent in descending into a mine shaft was also compensated because there was no evidence that he had violated any rules and at the time he was engaged in his regular job duties.

A theme has emerged here. Compensation will depend upon whether the injuries ''arise out of'' and ''are in the course of'' the injured party’s employment. Some employees take risks that have nothing to do with their employment at all, such as the construction worker who jumped on the log in the flooded creek, or the man who decided to walk across a conveyor belt when it was absolutely unnecessary and dangerous, or the guy who broke his hand on his van when he slammed it out of anger because his wheelbarrow tipped over. Although those injuries may meet the “arising out of” element of their employment merely by having occurred “on company time”, they do not meet the “in the course of” element of doing their jobs.

Contrast those situations with the paper boy who was picking up papers on his bike, the happy girl with the Achilles injury and the coal miner, although he may have been somewhat “negligent” in his descent into the coal mine. All of these injuries occurred on company time while the employee was engaged in doing their job. Unlike the situations above, at the time of injury these particular employees had not engaged in acts exclusively for their own personal purpose and beyond the ambit of their employment.

ABOUT THE AUTHOR: David Sheehan is a licensed attorney and a member of the State Bar of California.