22 Feb Georgia’s Willful Misconduct Defense: All Bark and No Bite?
By: Michael Memberg, Esq.
The Georgia Workers’ Compensation Act provides that no compensation shall be allowed for an injury caused by an employee’s willful misconduct, including the willful failure or refusal to use a safety appliance or perform a duty required by statute. On paper, the law reads like an employee has to diligently follow every safety policy, regulation, or law on the books or face a denied claim. However, Georgia law does not hold an employee’s negligence against him, no matter how gross. Furthermore, as the saying goes, “stupidity is no defense.” As a result, courts have time and again found that mere violations of safety policies, or even statutory violations like speeding, do not qualify as “willful misconduct” that would bar a claim. By that same token, there is a question whether texting while driving is “willful misconduct” contemplated by the statute, although we would certainly argue that it does. Ultimately, the law essentially requires the employee’s willful misconduct to be clearly intentional and done with a conscious disregard to safety and the likelihood of injury for an employer to have a defense.
As it happens, there actually is a case right now currently before the Supreme Court of Georgia on this issue, Chandler Telecom, LLC v. Burdette. In a nutshell, a cell phone tower technician was severely injured after falling a great distance while attempting to lower himself down the tower in a “controlled descent.” Descending in that manner was in direct violation of both the employer’s policy and specific instructions from his supervisor prior to the accident to climb down instead. The claim was denied by the ALJ and the Appellate Division, but the Georgia Court of Appeals found that his actions did not constitute “willful misconduct” because the “controlled descent” method was not per se unsafe. In fact, the employer required employees to be trained in that method for use in rescue scenarios.
The Supreme Court of Georgia heard oral arguments last year, and a decision is due by the end of March 2017. We are optimistic the Georgia Court of Appeals will be reversed and that there will be a new standard put in place that adds some teeth to the “willful misconduct” defense. However, if the decision is upheld, employers will have a much higher burden of proof to establish “willful misconduct.” Whatever the result, the Georgia General Assembly will hopefully realize it is time to take a close look at the “willful misconduct” language so that it is not left up to the courts to interpret on a case-by-case basis, especially on such obvious issues as texting while driving.
In the meantime, we continue to recommend doing everything possible to create a safe workplace and ensure employee compliance with safety policies. In particular, we recommend obtaining signed acknowledgments from employees of safety policies and the likelihood of injury if they are not followed. Also, if an employee is caught not following safety policy, they should be disciplined, including potential termination, if they cannot perform their job in a safe manner.