Can I sue my employer for a work injury in Texas?

Texas is unusual, and it changes the whole answer

Texas is the only state that does not require most private employers to carry workers' compensation. Whether yours chose to is the single fact that decides what you can do — and a great many injured workers do not know the answer for their own employer.

It can be found out. Employers must notify employees of their coverage status, and the Texas Department of Insurance's Division of Workers' Compensation keeps coverage information that can be requested. We check it before assuming anything.

If your employer is a subscriber

Workers' compensation benefits are the exclusive remedy against your employer for a work-related injury. You get medical benefits and income benefits without having to prove anyone was negligent — that is the trade the system makes — and in exchange you generally cannot sue the company, or a co-worker, for causing it.

There is one statutory exception and it is narrow enough that it should be described precisely rather than hinted at. Where an employee dies because of the employer's gross negligence or an intentional act, the surviving spouse or heirs of the body may recover exemplary damages. Note the three limits: it requires death, not injury; it is limited to exemplary damages; and standing is limited to those beneficiaries.

Comp cases also come with their own procedures and deadlines, run through the Division rather than a courthouse, and a dispute over benefits is a different fight from a negligence suit.

If your employer is a non-subscriber

Now you can sue for negligence — and Texas law strips the employer of the defenses that would normally do the work.

A non-subscriber may not argue that you were contributorily negligent, that you assumed the risk, or that a fellow employee caused it. That removes the three most common defenses in a workplace injury case, and it is a substantial advantage. The ordinary proportionate responsibility reduction that applies to a car wreck does not cut your recovery here the way it otherwise would.

Be clear about what remains: you must still prove the employer was negligent. Getting hurt at a non-subscriber is not automatic recovery. There has to be a failure — unsafe equipment, no training, a known hazard left in place, inadequate staffing, a missing guard.

Two more things worth knowing. A waiver you signed before being injured is void and unenforceable under Texas law, whatever it says and whatever anyone told you at orientation. And a waiver signed after an injury is valid only under strict conditions: voluntary and knowing, in writing, signed no earlier than the tenth business day after you reported the injury, after a non-emergency medical evaluation, and printed conspicuously. Many of the documents workers are handed in the first week fail those requirements.

The claim people miss entirely

Whether or not your employer is a subscriber, you can sue a third party whose negligence contributed to your injury. That claim is not barred by the exclusive remedy rule because it is not against your employer.

On a jobsite, that is often where the real recovery is: a general contractor or another subcontractor, the owner of the premises, the manufacturer of a defective tool or machine, a maintenance company, a staffing agency's client, the driver of a vehicle that hit you while you were working. A worker covered by comp who is hurt by another trade's crew has both a comp claim and a negligence claim against that company.

What to do this week

Your employer needs written notice of the injury, with proof it was received — a verbal report to a foreman is the most common gap in these cases, and we send that notice for you. Get medical care and say clearly that the injury happened at work. Photograph the equipment, the area and the condition before it is repaired or cleaned up, because it will be. Write down who was present. And do not sign anything describing itself as a benefit plan election, an arbitration agreement or a release until someone who represents you has read it.

The limitations period for a negligence suit in Texas is two years, and comp deadlines are shorter. Finding out which system you are in is free and takes one conversation.

Authority: Tex. Labor Code § 408.001 (exclusive remedy) · Tex. Labor Code § 406.033 (non-subscriber) · Texas Division of Workers' Compensation