Rich Meneghello, The Daily Record Newswire
A recent court decision awarded workers' compensation benefits to a worker who was injured during a company kickball game, causing employers across the country to ask many questions. Could this happen to us? Should we organize recreational activities for our employees at all? If so, what can we do to prevent this from happening? And should we cancel that dodgeball game we were considering? Here is a look at what happened and answers to these questions.
Stephen Whigham thought he came up with a good idea when he suggested the kickball game. He was the director of creative solutions for Jackson Dawson Communications, a marketing and public relations firm based in Greenville, S.C., and he attended bimonthly meetings with other managers where they batted around ideas to help improve company operations.
A frequent discussion centered on employee morale and team-building events, so when Whigham suggested a company kickball game, his bosses were all in. One of the company execs authorized him to spend almost $500 in company funds to secure a venue, print t-shirts, and buy drinks and snacks.
The big game was on a Friday afternoon, and about half of the company was able to attend. Whigham of course came ready to play. After one particularly good kick, Stephen was rounding the bases to the cheers of his colleagues when he jumped to avoid being tagged out by an opponent; unfortunately he landed awkwardly on his right leg and injured himself. This was no "pick yourself up and shake it off" kind of injury - Stephen shattered two bones in his leg, had to undergo two surgeries to repair the damage, and was told that he would eventually need a knee replacement to heal properly.
Whigham filed a workers' comp claim in hopes of recovering his costs from his employer's insurance carrier, but the state workers' compensation commission denied his claim. The commission said that this was a recreational event outside of work hours that he was not required to attend, and that there was no benefit to the company other than general employee morale. Whigham appealed to the state Supreme Court, which ruled in his favor in late August.
The main reason the Supreme Court granted him the victory was because his employer implied that his participation at the event was required, which brought the activity within the "orbit of employment." After all, he was the event's organizer, and his boss testified during the legal proceedings that he expected Whigham to attend because he was the one who conceived, planned and organized the event. Because of this, the court found that his absence may have been considered a dereliction of duty and affected his standing at the company, thus taking it a step above true "voluntary" attendance.
Most states have similar rules excluding injuries occurring during pure recreational events from workers' comp coverage, which means the average company picnic, party or sporting event (planned or impromptu) probably will not lead to company liability. What made this event different, obviously, is that Whigham was found to be implicitly forced to attend, removing it from the voluntary category.
As you can imagine, this means that the workers requested by company officials to attend recreational outings (organizers, party planners, event coordinators) are more likely to be considered performing work during these sessions and thus under workers' comp coverage. For sporting events, be forewarned that if a star player or a "ringer" is invited to show up at the softball game in order to clinch an important victory over a rival competitor, he or she may be more likely considered under the workers' comp umbrella.
Other factors that could lead to coverage include the time and location of the event: If it is held on company premises, and during regular work hours, coverage is more likely. Also, if the employer derives some sort of substantial benefit beyond the intangible value of improved employee health and morale, coverage is more likely. So, whereas a company-only event designed only for fun and camaraderie usually is outside of coverage, if this is more of a marketing activity - important clients or potential clients are invited, media coverage is invited to promote a charitable activity, etc. - the company may be more at risk of a workers' comp scenario.
So, what's the bottom line? Employers should continue to organize recreational events of all types. They foster employee morale, provide a valuable opportunity for employees in different departments to connect with each other, and demonstrate to workers that managers enjoy connecting with them.
However, recognize that a company can't necessarily escape workers' compensation claims just because an event is not happening at the workplace. A company may want to curtail particularly dangerous activities, understanding that getting someone to sign a release is not going to protect it from workers' comp and even negligence claims depending on the scenario.
As for dodgeball? Proceed at your own risk.
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Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter @pdxLaborLawyer.
Published: Mon, Oct 06, 2014
