LWDN Quick Flash ~ May 2012
A New Standard for "Willful Misconduct"
Recently, the Tennessee Supreme Court, in Troy Mitchell v. Fayetteville Public Utilities, adopted a new test for willful misconduct in workers’ compensation cases.
The new standard makes “willful misconduct” a more viable defense to employee misconduct. Surprisingly, the Court recognized the frequent futility on the part of employers in asserting a willful misconduct defense to employee negligence on the job. With this in mind, the Court adopted a new four-prong test for the “willful misconduct” defense.
The facts in this case concern an electrical utility worker who was shocked by approximately 7200 volts of electricity on the job. He had been an employee of the Fayetteville Public Utility for nine years and, upon his employment with the utility, was required to read and sign the Employee Handbook. As outlined in the Handbook, any employee working with live electricity was required, at all times, to wear long-armed rubber gloves. The employee felt that the gloves hampered his ability to use a hammer while on the utility pole and, therefore, removed his long-armed glove.
The Trial Court found that, while the employee’s act of removing the glove was “neither smart nor safe,” his justification for doing so was adequate to defeat the employer’s contention that the employee’s conduct rose to the level of willful misconduct.
It has been long established by the Tennessee Supreme Court that, in order to prevail on a “willful misconduct” defense, the employer must establish the following: (1) that the employee intended to commit the act; (2) that the employee purposely violated orders; and (3) that an element of perverseness existed in the performance of the act. This third element of “perverseness” was ill defined in Tennessee. Moreover, the bar was extremely high to have workplace misconduct be deemed willful. This term was liberally construed in favor of the employee.
A related defense of failure to use a safety device was set forth by the Tennessee Workers’ Compensation Appeals Panel in Nance v. State Industries, Inc., a case from 2000. To utilize this defense, the employer must show:
1. That the employer has a policy requiring the employee to use certain safety devices;
2. That the employer was strict in its enforcement of this policy;
3. That the employee had actual knowledge of the policy through the training program; and
4. Whether the employee willfully failed to use a safety appliance.
In the instant case, the Tennessee Supreme Court recognized from Larson’s Workers’ Compensation Law that there is a blurring between the defense of “willful misconduct” and the failure of an employee to willfully heed a safety regulation or policy. As a result, the Tennessee Supreme Court adopted the following four elements in order to determine whether a “willful misconduct” situation exists:
1. The employee’s actual as opposed to constructive notice of the rule;
2. The employee’s understanding of the danger involved in violating the rule;
3. The employee’s bona fide enforcement of the rule; and
4. The employee’s lack of a valid excuse for violating the rule.
The Court notes that this test is more straightforward than Nance or any of its predecessors. Moreover, it successfully unites the defense for willful misconduct and the defense of willful disregard for use of the safety appliance.
Using this new test, the Tennessee Supreme Court found that the employee could not fashion a reasonable excuse under the fourth element for removing his safety glove to use his hammer while on the pole. As a result, the Court dismissed the employee’s claim in its entirety.
One Justice in this case did file a dissent indicating that it would make it easier for employers to assert a willful misconduct defense for merely negligent or reckless conduct on the job. Thankfully, in this case, the Tennessee Supreme Court imposed a clearer standard and no longer requires such a high level of misconduct on the part of the employee in order to find the employee’s conduct willful in nature.
Employers will now be able to assert the “willful misconduct” defense if the plaintiff has a poor reason for the action or inaction that led to his injury. This standard should assist the defense in cases where the conduct of the employee is questionable.