Allowing Server to Drink on Job Doesn't Defeat Exclusivity Rules

24 Sep, 2020 Frank Ferreri


San Diego, CA ( – Encouraging, and maybe even requiring, employees to drink on the job won’t ever be a best practice for safety.

However, as the court in Contreras Curiel Corp. v. G.S., No. D077407 (Cal. Ct. App. 09/17/20, unpublished) held, nudging employees to imbibe “to the point of gross intoxication” on their shifts won’t necessarily defeat the exclusivity provisions of workers’ compensation law either.

Drinking with Customers

After working an evening shift, a server for a California restaurant died in a single-car rollover accident. She left behind a young son, who, through a guardian ad litem, sued the restaurant in a wrongful death lawsuit.

According to the lawsuit, the server became “grossly intoxicated” during her shift due to the restaurant’s practice of encouraging servers to drink alcohol with customers. The restaurant had a policy prohibiting employees from consuming alcohol on their shifts, but employees’ testified that the policy was routinely violated.

A bartender at the restaurant reported that “everyone would get drunk” during their shifts and noted that managers “took shots” with customers and employees. Employees reported that the restaurant’s main concern was that customers paid for all alcohol consumed.

In the trial court, the restaurant argued that the lawsuit could not go forward because the state’s workers’ compensation exclusivity provisions prevented it. The trial court disagreed and allowed the case to move ahead.

The restaurant appealed, claiming that the appeals court should vacate the trial court’s decision to apply the exclusive remedies prescriptions under California law. Exclusivity refers to the legal principle under which employees may receive workers’ compensation benefits through “swift and certain payment” but may not sue for potentially greater damages in a tort lawsuit.

However, exclusivity doesn’t always prevent cases going forward. When an employer engages in actions that are outside its proper role as an employer or that have a questionable relationship to the worker’s employment, an employee will be able to sue for more than just workers’ compensation benefits.

Reckless, but Part of Employment

In this case, the appeals court determined that the restaurant’s conduct did not fall within the exceptions to workers’ compensation exclusivity.

While encouraging servers to consume alcohol “may have been reckless and appears to violate state alcoholic beverage regulations,” it was similar to other conduct that creates or worsens workplace hazards in the court’s view.

Although the restaurant “allowed, encouraged, and expected its servers to drink during their shifts,” the court found that this didn’t bring the case beyond the workers’ compensation exclusivity boundaries.

“While it is clearly reckless under many circumstances, and potentially exploitative under the circumstances here, it is equally clear that an employer's tolerance, encouragement, or expectation of alcohol consumption during work hours is part of the employment relationship for purposes of determining whether workers' compensation exclusivity applies,” the court reasoned.

The appeals court vacated the trial court’s ruling against the restaurant and ordered it to grant the restaurant’s motion for summary judgment. As a result, the tort claim could not go forward and the server’s son was limited to recovery of workers’ compensation benefits.


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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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