WCDefenseCA

Under Labor Code § 3600(a)(7), California Workers’ Compensation defendants have a rarely used defense against applicants who get hurt at work from fights they themselves started.  This section came up in a recent writ denied case (2011 Cal. Wrk. Comp. Lexis 75).

Engaged in the heist of the century, a shoplifter attempted to steal several 12-packs of soda.  The applicant, a uniformed security guard, passed over his cape and mask in favor of his self-issued pepper spray, springing into action!  After spraying the would-be thief from six feet away, the security guard sustained injury to his left shoulder, left upper extremity, left hand, wrist and fingers.  Even Batman gets bruises from time to time.

The defendant invoked § 3600(a)(7), claiming that the security guard was the initial physical aggressor, and in fact, although qualified for super-hero status, was exceeding the scope of his job requirements.  His duties were, in fact, simply “observing, reporting, and being a visual deterrent and physical presence in the parking lot of Defendant’s store.”

The WCAB rejected this “scarecrow” job description and rejected each defense as quickly as it was brought up: (1) it matters not that the applicant was acting outside of his job duties, or even in direct opposition to specific instructions from his supervisors, the test is “whether the work was done of benefit” to the employer; likewise (2) a security guard aggressive with shoplifters, an initial physical aggressor does not make.  § 3600(a)(7) is instead intended to punish horseplay amongst employees, and so is inapplicable to this case.

A contrary example comes from a recent reconsideration-denied case, Anderson v. G-3 Enterprises (ADJ7357811).  [Full disclosure: Thomas Harbinson (my boss) and Laura Lachman of Harbinson Tune Kasselik, handled this one]. There, the applicant was the initial physical aggressor in a spat with a co-worker.  The defense evidence consisted of the written statement of the gentleman applicant fought with and the testimony of a neutral third employee.  Both said that Mr. Anderson had started the fight.   § 3600(a)(7) was invoked and completely blocked the applicant’s claims.

That being said, employers retaining security guards find themselves in the unique position of providing a safety net for super heroes with day jobs.  Employers must concern themselves with employees that could hurt shoplifters/customers as well as themselves.  My suggestion – label each job posting with “loose cannons need not apply.”