A recent opinion from the United States District Court for the Southern District of Mississippi – Tanks v. Lockheed-Martin Corp., 2004 U.S. Dist. LEXIS 17123 (August 13, 2004) – suggests that an employer may not rely on the "exclusive remedy" provision of a state workers compensation statute when faced with a wrongful death claim brought by the estate of a victim of workplace violence.

The Facts

An employee embarked on a shooting rampage at his place of work, killing several co-workers. The daughter of one of the victims brought a wrongful death action against the employer, in part alleging that the employer was negligent in failing to provide protection from the shooter who had been "known to harbor extreme racial hatred toward his African-American co-workers."

The employer sought to dismiss the claim, arguing that the exclusive remedy provision of Mississippi’s Workers’ Compensation Act bars the action. The "exclusive remedy" provision, found in most workers compensation statutes, bars civil claims by employees or their estates against employers for injuries arising out of, and in the course of, their employment.

The court refused to dismiss the lawsuit. That refusal was based on the Act’s exclusivity bar. The court held that injuries suffered by an employee at the hand of a co-worker not acting within the scope of his employment are not compensable injuries under the Workers Compensation Act. Therefore, claims brought by the injured employee against the employer are not barred by the exclusivity provision of the Act. The court reasoned that an employee who commits an intentional act that is not within the scope of his employment is not an "employee." The court explained that if the injury is caused by the willful, intentional act of a stranger to the employment relationship, and if the act was directed against the employee "because of his employment while so employed and working on the job," the court would find the employee’s injury to be compensable and the exclusivity bar would apply." However, if a stranger to the employment relationship intentionally injuries an employee while working for reasons wholly unrelated to the employee’s employment, then the injury is not compensable under the Act.

Here, the willful and intentional acts were committed outside the course and scope of employment and not in furtherance of the employer’s business objectives. Further, there was no indication that the wrongful actions were directed against the co-workers "because of their employment."

What Employers Should Do

  • Review the Workers’ Compensation Act in your state. It may not provide an exclusive remedy for all injuries occurring in the workplace;

  • If the State Workers’ Compensation Act does not apply, employers are generally subject to jury trials under state law, and uncapped damages are available to plaintiffs;

  • Employers should be on the lookout for employees who demonstrate animus against their co-workers unrelated to their co-workers’ employment;

  • Employers should consider treating such animus as a violation of the "no-harassment" policy; and

  • Employers should review their policies regarding conducting "background checks" prior to hire.

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