As the Governor and Legislature try to reform the workers’ compensation in California, perhaps one of the reasons why the costs of the program are spiraling out of control is that employers try to cast every injury received “on the job” as one covered by workers comp when they fall into one of the exceptions.

For example, Jeremy Meinstma worked for a company making railroad parts in Minnesota. It was a male-dominated workplace.

About 10 years ago the workers decided to add a little spice to birthday parties for co-workers. Instead of the usual cake and candle, the men decided to develop a tradition of spanking fellow employees on their birthdays.

According to court records, a small group of employees would approach and surround the birthday “boy”, wrestle him to the ground and hit him on the buttocks, sometimes using a long wooden paddle crafted from a two-by-four.

The birthday bondage occurred during working hours or right after, and company supervisors were not only aware of the ritual, but even one manager joined in.

On the day of his birthday, Meinstma was working on a shift when co-workers grabbed him, wrestled him to the ground, and spanked him with the wooden paddle. Meinstma was hardly a willing submissive, as he suffered injuries during the incident, including a cut on his arm and back injuries.

As a result, Meinstma sued the company and the co-workers for his physical and his emotional distress (e.g., the humiliation and depression that he suffered). The company claimed Meinstma’s sole remedy would be under the state’s workers’ compensation program. This was because Meinstma’s injuries occurred on the job, were not an “assault”, and the company didn’t purposely injure Meinstma.

The distinction is important for employees because, if injured, employees recover much more when they can sue an employer directly. There is no cap on the damage award. But workers’ compensation recoveries are usually meager, at best.

An appellate court in Minnesota found that Meinstma’s injuries did occur on the job. But Meinstma argued that the spanking was “an assault” perpetrated by fellow employees. As such, he argued, his claim falls outside of the “exclusive” remedies provided by workers’ compensation.

But the court found that the spanking wasn’t an assault because there was no evidence that the co-workers intended to harm him for personal reasons. It was just tomfoolery, implied the court. It wasn’t as if he was singled out for the spanking; it was a tradition at the company.

Finally, Meinstma argued that the company intended to injure him by not taking measures to stop the tradition of spankings. And, while the court agreed, it said it could not infer from the inaction that the company intended to injure its employees. The company was negligent, but not deliberate or intentional.

Meinstma also sued the co-workers, and they, too, claimed that workers’ comp covered Meinstma’s claims because they didn’t intend to injure him, just tease him. The court agreed, finding that the co-workers didn’t engage in actionable “battery” because Minnesota law requires a batterer to have “intent to injure.”

In any context, whether it’s on the job or in the bedroom, an unconsented act is, at best, a battery, and, at worst, rape or murder. It’s really ludicrous to hold otherwise. Imagine a domestic violence case where a batterer could argue that “it wasn’t a battery ‘cuz I didn’t have an intent to injure her, just tease her.”

The U.S. Supreme Court has also held that same-sex sexual harassment is actionable against employers. In that case, a man working on an oil rig was subject to being spanked and fondled by his male co-workers in the shower. His employer knew about the hazing and the teasing. It argued that there couldn’t be sexual harassment because the men didn’t have a “sexual” motive in the act.

The Supreme Court dismissed the view that this was just “boys being boys” and that there could only be sexual harassment when it was heterosexually related.

One of the reasons why workers’ comp premiums have gone up so much is that employers try to pigeonhole every on-the-job injury into workers’ comp. This avoids having to use other forms of insurance to cover the injury.

Here, when an employer knows that its employees are hazing or teasing or otherwise harming employees, the employer, at the very least, has a duty to take measures to stop the conduct.