What happens if you see your employee is about to get hurt, and you immediately fire him before the injury occurs?  Can you avoid workers’ compensation liability?  If a worker falls from a high platform, can his employer shout “you’re fired” before he lands?

I know those two are silly examples, but what about this one: If you fire your employee, and he gets hurt on the way home, are you somehow on the hook?

Consider, if you will, the case of Jose Medel v. Charter Communications, Inc., a recent writ denied panel case.  Mr. Medel was employed as a technician by Charter Communications, and used the company car to drive to and from work, and to drive out to the homes and businesses of Charter clients to install or maintain their phone and internet connections.

One fine day in April, he was summoned to the Human Resources office, where his employment was terminated.  His company car keys were taken, as were his company cell phone and ID badge.  Chartis then arranged for Mr. Medel to be taken home by Town car.

Unfortunately, the car’s driver lost consciousness and in the resulting car accident, the driver was killed and Mr. Medel sustained injury.

In resisting the claim, Chartis argued that Mr. Medel was no longer an employee by the time he got into the car for his drive home.  Chartis also raised the argument of the going and coming rule – after all, Mr. Medel was on his way home and no longer providing service to his employer.

Both defenses were soundly defeated.

Relying on Shoemaker v. Myers, a 1990 California Supreme Court Case, the WCAB noted that “the employment relationship continues for a reasonable time after its technical termination in order to effectuate an orderly termination of the relationship.”  Even after the magic word “you’re fired” are said, the spell does not immediately take effect.  In all likelihood, once Mr. Medel had made it safely home, the relationship would have been at an end, assuming there was no phone call asking him to come pick up a final check or his personal belongings.

Because of the terms of the employment, Mr. Medel found himself stranded at his employer’s premises, without a car or a phone.  It would be interesting, though, to see what result we’d have if Mr. Medel had turned down the offer of the ride, and had called a cab instead.  Your humble blogger would argue that the self-procured cab ride home may have terminated the employment relationship, whereas the employer-provided transportation failed to do so.

The WCAB also rejected the “going and coming” rule because of the patchwork of exceptions.  Mr. Medel was technically engaged in a special mission by going to the HR office, and was thereby covered by workers’ comp until the mission was over (his arrival at home).  Additionally, employer-provided transportation like a bus, carpool, etc., typically provides yet another example of the going and coming rule’s limitations.

As many employers have learned the hard way, liability for the actions and the injuries of employees does not end so abruptly as uttering the magic words of “you’re fired.”  One of your humble blogger’s former employers, long, long, before he became an attorney, would make sure that a fired employee would be escorted from the premises, to avoid intentional falls and injuries.

Just another thought, though – why would you want to have workers’ compensation bar this claim?  Imagine, if you will, that Mr. Medel’s claim was defeated by the defenses discussed above: he would then seek damages in tort against Chartis, with much higher litigation costs and much larger (potential) verdicts.  But, again, perhaps this is an area where not all defense interests are aligned.