Usually not. When an injury arises out of and in the course of employment, Labor Code section 3602 makes workers’ compensation “the sole and exclusive remedy of the employee” against the employer. The statute lists a few exceptions: a willful physical assault by the employer, fraudulent concealment that aggravates an injury, and certain defective products. Separate sections add a lawsuit right against uninsured employers and for removed power press guards. Those exceptions are narrow, and the defense usually starts by holding the plaintiff to them.
What does the exclusive remedy rule say?
Labor Code section 3602(a) provides that when the conditions of compensation in section 3600 are met, the right to recover compensation is, “except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer.”
The same subdivision closes off one familiar workaround. The fact that the employer “also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.” An employee hurt by the employer’s own equipment, for example, can’t sue the employer as a property owner or equipment maker to get around the rule, outside the narrow product exception discussed below.
The rule is a trade. The employee gets benefits without proving fault, and the employer gets protection from tort damages. That bargain explains why California courts read the exceptions narrowly.
What are the statutory exceptions?
Subdivision (b) lists three situations in which an employee may sue the employer “as if this division did not apply.”
The first is a “willful physical assault by the employer.” Courts have generally required a real physical attack by the employer, or someone acting as the employer, with intent to injure. A supervisor’s rough push in an argument can raise the question, but ordinary negligence about safety doesn’t.
The second exception applies “Where the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment.” This is narrower than it looks. It requires that the employer knew of the injury and its work connection, hid it, and that the concealment made the injury worse. Even then, the statute says the employer’s liability “shall be limited to those damages proximately caused by the aggravation,” and the employer bears the burden of proof on apportioning damages between the original injury and the aggravation.
The third covers an injury caused by a defective product the employer manufactured and transferred to an independent third person for payment, when a third person later provides that product for the employee’s use. This exception is rare outside manufacturing.
What happens if the employer has no workers’ comp insurance?
The protection disappears. Labor Code section 3706 says that if an employer “fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.”
This is the exception that produces the biggest surprises. A company that let its policy lapse, or that treated workers as independent contractors and never covered them, can face a full civil damages suit. Misclassification cases sometimes turn into injury cases this way. The firm’s post on the ABC test for independent contractors covers the classification side.
Staffing arrangements have their own rule. Under section 3602(d), a client company can secure coverage for workers provided by another employer through a valid agreement under which the other employer agrees to obtain, and has in fact obtained, workers’ compensation coverage for them. A client relying on a staffing agency’s coverage should keep the agreement and proof that the coverage was in force.
What is the power press exception?
Labor Code section 4558 allows a civil suit when an employee is injured by a power press because the employer knowingly removed, or knowingly failed to install, a point-of-operation guard that the manufacturer designed or required. The exception is specific to power presses and has detailed conditions, and it’s one of the two exceptions section 3602(a) names.
| Exception | Statute | Key conditions | Typical defense points |
|---|---|---|---|
| Willful physical assault | Lab. Code 3602(b)(1) | Physical assault by the employer | No intent to injure; actor wasn’t the employer’s alter ego |
| Fraudulent concealment | Lab. Code 3602(b)(2) | Knowledge, concealment, and aggravation | No knowledge; no aggravation; damages limited to aggravation |
| Dual-capacity product | Lab. Code 3602(b)(3) | Product sold to a third party and returned for employee use | Product never transferred to an independent third person |
| No coverage | Lab. Code 3706 | Employer failed to secure compensation | Proof of coverage, including staffing agreements |
| Power press guard | Lab. Code 4558 | Knowing removal or failure to install a required guard | Not a power press; guard not required; no knowledge |
Does exclusivity bar discrimination and retaliation claims?
Generally not. Exclusivity covers claims for the injury itself. It doesn’t usually bar a FEHA claim that the employer discriminated against an employee because of a disability that followed an injury, or a claim that the employer fired the employee for filing a workers’ compensation claim. Those are claims about the employer’s later treatment of the employee, and they’re litigated in court or before the agencies, not inside the workers’ comp system.
That’s why a workplace injury often produces two tracks of exposure: the comp claim, handled by the carrier, and an employment case about what happened when the employee tried to return. The employment track often carries more exposure than the injury itself, because FEHA allows emotional distress damages, punitive damages, and attorney fees that the comp system doesn’t. An employer that handles the return-to-work process carefully, with an interactive process and written offers of modified duty where possible, removes much of that second-track risk.
Serious and willful misconduct is a separate concept. It doesn’t open the door to a civil suit, but it can increase the comp award. The firm’s post on serious and willful misconduct claims covers that remedy.
After an injured employee files a civil lawsuit
- Preserve the incident reports, safety records, training logs, equipment maintenance files, the workers’ comp claim file, and the relevant emails and texts under a litigation hold.
- Calendar the response deadline on the summons, and notify the workers’ comp carrier and any EPLI or general liability carrier whose policy might respond.
- Identify the supervisors and coworkers who saw the injury or handled the claim, and avoid any action against the employee that could look like retaliation.
- Pull the workers’ comp policy declarations, proof of coverage for the injury date, and any staffing agreement that allocates coverage.
- Talk with defense counsel about a demurrer or summary judgment motion based on exclusivity before answering or discussing settlement.
Exclusivity defenses are often decided early, on the pleadings. The firm’s page on employment defense attorneys in California describes how those motions fit into a defense.
Workers’ comp exclusivity questions
Can an employee sue a coworker for a workplace injury?
California’s workers’ compensation statutes give coworkers protection similar to the employer’s in most cases, with their own exceptions, including willful and unprovoked physical aggression and intoxication. A coworker lawsuit often draws the employer in through a defense or indemnity request. Those claims should be sent to counsel and the carrier as soon as they arrive.
Is emotional distress from a firing covered by exclusivity?
Sometimes. Emotional distress that results from normal personnel decisions is often treated as within the comp system. But distress tied to discrimination, harassment, or retaliation that violates FEHA or public policy usually isn’t barred. How the complaint is pleaded matters, and an exclusivity defense to emotional distress claims needs careful analysis of what conduct is alleged.
What if the employer’s coverage lapsed for only a few days?
If the injury happened during the gap, section 3706 can allow a civil lawsuit. The exact dates of the lapse and the injury matter, and so does any proof that the coverage was reinstated retroactively. Employers in that position should gather the policy, cancellation and reinstatement notices, and premium payment records right away.
Can the employer move to dismiss on exclusivity grounds?
Often yes. When the complaint itself shows the injury happened at work and no exception is properly pleaded, a demurrer can be the right tool. When the facts are disputed, the defense usually moves for summary judgment after discovery. Exclusivity is an affirmative defense, so it should also be raised in the answer to preserve it.
If an injured employee has sued your company directly
If your company has been sued for a workplace injury outside the workers’ comp system, the coverage records and the facts of the injury usually decide whether an exception really applies. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving workplace injuries and workers’ comp exclusivity. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 3602, Labor Code section 3706, and Labor Code section 4558.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.