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Workers' Compensation

The Company Outing: Course of Employment Issues

Summer is right around the corner, and with it comes annual company picnics, baseball games, parties and the like. These types of events raise a host of workers’ comp issues for employers.

For example, last week my manager took our entire team out to lunch for purposes of team building. Everyone was asked to take public transportation together, with BART tickets having been purchased in advance for each team member. The employer-provided lunch was held at Tacolicious, a restaurant located in the Mission District of San Francisco. The tacos were delicious as were the margaritas consumed by many in attendance. Everyone was asked to schedule 2.5 hours in their workday for this team event unless you were unable to attend due to a personal hardship.

What would’ve happened if someone ate a bad taco and got food poisoning, or had one too many margaritas and tripped and fell? Would it have been in the course of employment?

To shed light on the legal issues involved, see the following discussion excerpted from Larson’s Workers’ Compensation Law.

Recreational and Social Activities: Employer Sponsored Picnics

Recreational or social activities are within the course of employment when:

1. They occur on the premises during a lunch or recreation period as a regular incident of the employment; or

2. The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or

3. The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

When the degree of employer involvement descends from compulsion to mere sponsorship or encouragement, the questions become closer, and it becomes necessary to consult a series of tests bearing on work-connection. The most prolific illustrations of this problem are company picnics and office parties. Among the questions to be asked are:

1. Did the employer in fact sponsor the event?

2. To what extent was attendance really voluntary? Was there some degree of encouragement to attend in such factors as taking a record of attendance, paying for the time spent, requiring the employee to work if he did not attend, or maintaining a known custom of attending?

3. Did the employer finance the occasion to a substantial extent?

4. Did the employees regard it as an employment benefit to which they were entitled as of right?

5. Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?

The company-picnic cases have one argument in favor of compensability which makes them somewhat stronger than the company-team cases: the picnics almost invariably take place on company time, with the employee continuing to draw his pay, while the company-league ball-games are usually outside of work hours. In one sense, when the employer plans a regular outing and urges his employees to go to a specified place for the purpose, continuing their pay while there, it may be said that both the time and space limits of the employment are expanded to picnic-day at the picnic-grounds. When to all this is added evidence that the employer is deriving benefit from the outing, the combination should easily suffice to bring it within the scope of employment.

The Going and Coming Journey in Picnic and Party Cases

In a number of the cases involving parties and picnics, the injury occurred in the course of the going and coming journey, and a different rule has emerged in the two categories of cases. In the office party cases, the going and coming journey off the employer's premises has ordinarily been held to be outside the course of employment, but in the picnic cases, the usual holding, sometimes without much discussion of the specific question, treats an injury during the going and coming journey the same as one during the actual outing: if it would have been covered had it occurred during the picnic itself, it is covered during the trip to and from the site; if it would not have been covered during the actual event--being, for example, essentially an employee-sponsored affair--it will not be covered during the trip. What seems to have happened is that the office party cases have been handled under the basic premises rule, whereas the picnic cases, involving typically an unusual trip to a place other than the employer's premises, have been assimilated to the special errand cases, with the entire episode being deemed covered including the going and coming journey.

The California Supreme Court has ruled, however, that the employer may so involve himself in an office party, as by permitting such parties regularly and by furnishing the drinks, that an accident in the course of the homeward journey will be covered. In McCarty v. Workmen's Comp. App. Board, the decedent was killed while driving home from the office Christmas party. The employer regularly permitted parties after hours on the premises at which drinking took place, with the drinks paid for by the employer. Some business was talked on these occasions, but the court concluded that the customary nature of this practice was adequate to establish work-connection, without the aid of this possible employer-benefit argument. As to the fact that the accident took place off the premises, the court uttered a formula that seems to say that "course" follows "causation": "[I]f the proximate cause is of industrial origin, the time and place of injury, even if foreign to the premises, does not serve to nullify recovery." The employer was estopped to raise the defense of intoxication since he had tolerated and even encouraged the drinking.

Personal Comfort Doctrine: Meals Off-Premises

The general rule as stated by Larson’s is: Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless, in some jurisdictions, the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment.

Personal comfort relates to incidental acts, such as eating, drinking, sleeping, resting, washing, smoking, seeking fresh air, coolness or warmth, and the like. Somewhat different problems arise for two different groups: (1) employees, whose hours and premises of work are somewhat definite, and (2) traveling employees, workers who live in bunkhouses, domestic servants living on the premises, and employees continuously on call.

When the exceptional facts are present which convert an off-premises excursion for lunch into a part of the employment for purposes of injuries received while going and coming, it may be argued that, in the interests of consistency, an injury occurring in the course of or resulting from the lunch itself is also in the course of employment. The leading case establishing this rule is Krause v. Swartwood, in which a physician’s secretary, who ordinarily lunched at home, was requested by her employer to take her lunch at a nearby restaurant because of his absence, and to have phone calls from the office transferred there. The lunch was to be paid for by the employer. The secretary suffered chemical poisoning from coffee made in a new urn at the restaurant, and compensation was awarded by the Supreme Court of Minnesota, reversing the Industrial Commission’s denial.

© Copyright 2012 LexisNexis. All rights reserved. 

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

Larson’s Workers’ Compensation Law 

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