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    Worker's Compensation Division

    I was assaulted at work by another employee. Can I sue?

    Employers have a duty of care to provide a safe work environment for their employees. If they violate this duty of care, they may be liable for civil damages when an employee is assaulted or sexually assaulted by a co-worker.

    A lawsuit against the employer for a workplace assault is just one option. The victim of a workplace assault can also:

    • Complain to their company’s human resources department or a supervisor;
    • File a police report;
    • Apply for workers’ compensation; and/or
    • Bring a civil lawsuit for compensatory damages against the co-worker.

    Victims who bring a workplace violence lawsuit against an abusive co-worker or an employer may be able to recover money for:

    To help you better understand what to do if you are assaulted by a fellow employee, our California personal injury lawyers discuss:

    You may also wish to read our articles on “Suing for Workplace Harassment in California” and “Lawsuits by Crime Victims in California.”

    close-up on woman's face covered in bruises

    1. What is “assault” and “battery”?

    California Penal Code 240 defines “assault” as a threat or attempt to commit a violent injury against someone else. When unlawful force or violence is actually used, the crime is known as “battery” under Penal Code 242.

    Other wrongful acts that fall under the general heading of “assault and battery” include (without limitation):

    Any of these or similar crimes can form the basis of a civil lawsuit for damages.

    2. What rights do I have if I am assaulted at work?

    Victims of a co-worker assault can:

    • Report the crime to the police,
    • File a complaint with the employer, and/or
    • File a workers’ compensation claim or a lawsuit against the co-worker and/or employer.

    Criminal Complaints vs. Civil Lawsuits

    The criminal justice system is about determining guilt and punishment. The D.A. decides whether to pursue charges and whether to let the perpetrator cut a deal.

    A civil lawsuit, on the other hand, is focused on making the victim as whole as possible. This means that the victim gets to decide how far to take a lawsuit and whether to settle out of court.

    3. Do I have to file a police report?

    Victims can bring a civil lawsuit without filing a police report. Even if the prosecutor does bring criminal charges, victims can still sue if the defendant gets acquitted at trial.

    However, there are three key advantages to filing a police report before filing a civil lawsuit:

    1. Going to the police tells the victim’s employer that the charges should be taken seriously,
    2. Reporting the crime can prevent the defendant’s lawyer from using the lack of a police report to question the victim’s credibility, and
    3. If the defendant is convicted in a criminal trial, it can extend the statute of limitations – the period during which a crime victim can file a civil lawsuit for damages.

    4. Do I need to file a complaint with my employer?

    No. A victim does not have to report an assault to their employer to be able to sue for damages. Though it is usually a good idea.

    Most employers’ human resources departments take charges of assault seriously. Failure to lodge a complaint with an employer may cast doubts on the accuser’s credibility.

    However, not all companies are big enough to have human resources departments. Also, human resources departments work for the employer, not the employee. The goal of HR is usually to resolve disputes quickly and quietly.

    Some employers are more committed than others to a full investigation of employee abuse complaints. Some even use independent third-party investigators to make the process more fair and transparent.

    5. Should I file a complaint?

    It is usually worthwhile for someone assaulted by a co-worker to file a complaint with the employer. Filing a complaint allows a victim to:

    • Be the first to provide their version of events to the employer;
    • Take advantage of any benefits — such as free counseling — offered by the employer;
    • Prevent future accusations that the victim was making things up; and
    • Encourage witnesses to cooperate in getting to the bottom of what happened.

    Filing a complaint also gives the employer the opportunity to take steps to keep the victim and others safe at work.

    young woman filing a police report with a young male officer

    6. Can I sue my co-worker?

    Yes. California permits victims of an assault to sue the person who assaulted them, whether they are co-workers or not.

    In some cases, the person who committed the assault may be the only one liable. However, most employees do not have the same assets as an employer. Also, employees are less likely to have insurance to cover such acts.

    If there is a chance the employer is liable, it is usually worthwhile to make a claim against the employer as well as the employee who committed the assault.

    7. When can I sue my employer?

    There are two situations in which an employer can be held liable for a co-worker assault, discussed below:

    The Employer Was Negligent in Hiring, Retaining or Supervising the Employee

    California law makes employers liable if they are negligent in hiring, retaining or supervising a potentially dangerous employee.

    To hold an employer liable under this theory, a plaintiff must show that:

    1. The employee who committed the assault was unfit or incompetent to do the work for which they were  hired;
    2. The employer knew (or should have known) that the employee posed a danger of harm to others; and
    3. Because of the employee’s unfitness or incompetence, the plaintiff was harmed.1

    The Employer Is Indirectly Liable for the Acts of its Employees

    An employer may be “vicariously” (indirectly) liable for its employee’s actions when:

    1. An employee is acting within the ordinary scope of their employment,
    2. The employee’s actions were in furtherance of the employer’s legitimate business objective, and
    3. As the result of the employee’s actions, someone was injured.

    In most cases, vicarious liability will not apply when an employee assaults a co-worker. This is because assaulting co-workers is not within the ordinary scope of most people’s jobs.

    Though in some cases, physical force is a part of an employee’s job. Examples of such jobs include:

    • Security guards,
    • Nightclub bouncers,
    • Sports coaches, and
    • Professional athletes.

    Even when force is within the scope of an employee’s job, however, it is not always an excuse for assault. If the employee uses too much force, an employer may be liable

    one football player tackling another

    8. What if my employer retaliates?

    California’s Whistleblower Protection Act makes it illegal for a company to retaliate against an employee for disclosing an assault to:

    • A government agency,
    • Law enforcement, or
    • The person or department at a company who has the authority to investigate, discover, or correct legal violations.3

    Companies retaliating against an employee in violation of the Whistleblower Protection Act can:

    • Be fined a civil penalty of up to $10,000 per incident, and/or
    • Be tried for a misdemeanor and sentenced to an additional fine and/ or up to a year in county jail.4

    For more information on filing a complaint about retaliation, please visit the California Department of Industrial Relations, How to file a retaliation/discrimination complaint.

    9. What if I am in the U.S. unlawfully?

    California government officials generally do not question someone’s immigration status or report it to other government agencies while investigating an assault claim. The State of California is more interested in rooting out dangerous employees than in punishing people who are here without documentation.

    Undocumented aliens who feel they have been retaliated against for reporting a workplace assault should contact:

    10. Can my co-worker sue me for defamation?

    Unfortunately, yes. Some perpetrators will bring a suit for defamation in the hope of silencing their assault and battery victims.

    Victims should know that truth is an absolute defense to charges of defamation in California. Additionally, depending on the situation, wrongfully trying to silence a victim with a lawsuit may constitute an abuse of process.

    However, the costs of making a wrongful defamation claim go away can be expensive.

    For this reason, we recommend that employees discuss their situation with an experienced California injury lawyer as soon as possible after an assault has occurred.

    11. Can I get workers’ compensation?

    Yes. Under workers’ compensation laws, a workplace assault is considered a work-related injury

    The advantage of workers’ compensation is that it will cover most damages right away. Civil lawsuits can sometimes take years to work their way through the system.

    However, recovery for lost wages is lower — usually about 2/3 of the employee’s pay. Furthermore, workers’ comp does not let victims recover for pain and suffering damages (other than to receive therapy).

    It should also be noted that workers’ compensation is usually an exclusive remedy. This means that if a claim is covered by workers’ comp, the victim will not also be able to sue the employer.

    For more information, read the California Department of Industrial Relations guide on “How to file a claim.”

    Additional Resources

    For information about workplace violence, refer to the following:

    Legal References:

    1. California Civil Jury Instructions (CACI) 426. Negligent Hiring, Supervision, or Retention of Employee.
    2. California Public Utilities Code 5445.2.
    3. California Labor Code 1102.5.
    4. California Labor Code 1103.

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