The threat of violence has become an unfortunate part of the working world. From fistfights to sexual assault and shootings, when violence enters the workplace it can disrupt lives and hurt business. Someone who is seriously hurt in a violent incident at work should speak to an experienced personal injury lawyer about the legal options for recovering compensation. One question that will come up is whether the employer bears responsibility.
Violence and the workers’ compensation exclusive remedy rule
Nevada’s workers’ compensation law imposes stark limits on when an employee can sue an employer for injuries suffered while at work. With few exceptions, so long as the employer has the mandatory workers’ compensation coverage, an employee’s only remedy for “injury by accident arising out of and in the course of the employment” is to pursue a workers’ compensation claim. NRS 616A.020. Generally speaking, an employee cannot bring a personal injury lawsuit against his or her employer provided that the employer has workers’ compensation insurance.
The Nevada Supreme Court has given a broad reading to the exclusive remedy rule. In Cummings v. United Resort Hotels, 85 Nev. 23 (1969), a hotel worker was murdered by a mentally ill coworker in the hotel’s employee locker room. The Court agreed with the lower court’s conclusion that the attack “arose out of” the dead worker’s employment, and therefore a workers’ compensation exclusive remedy rule barred a personal injury claim. The Court reached the same conclusion with respect to a workplace sexual assault. Wood v. Safeway, Inc., 121 Nev. 724 (2005).
What if the employer knew about a dangerous employee and didn’t take steps to remedy the problem? Even in this case, the employer likely is protected by the exclusive remedy rule. Sweeping Servs. of Tex. v. Eighth Judicial Dist. Court, 2011 Nev. Unpub. LEXIS 159 (2011). Even though the employer knew that a dangerous situation was possible, it cannot be sued.
Intentional harm provides an exception
An important exception to the exclusive remedy rule is for intentional harm committed by an employer against an employee. The key difference with this exception is that the employer “deliberately and specifically intended to injure” the employee. Conway v. Circus Casinos, Inc., 116 Nev. 870, 875 (2000). In its Conway ruling the Supreme Court took pains to clarify that the intent requirement is something more than just knowing about the possibility of injury and not doing anything to prevent it. The injured employee has to show that the employer actively wanted cause the injury.
A significant challenge in many such cases will be proving that the employer itself had the requisite intent necessary to overcome the exclusive remedy rule. The Supreme Court has allowed actions to go forward against an individual employer who physically attacked an employee. Barjesteh v. Faye’s Pub, 106 Nev. 120 (1990). It has also allowed a suit to go forward against other employees who allegedly committed intentional harm against a plaintiff. Fanders v. Riverside Resort & Casino, Inc., 126 Nev. 543 (2010).
Consult with experienced attorneys about your workplace violence claims
For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in the areas of personal injury and workers compensation. Our attorneys can answer your tough questions about your legal options to respond to workplace violence. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.