Yes. In Texas, if your employer chose not to carry workers’ compensation insurance (a “non-subscriber”), you can generally sue it for negligence when you are hurt on the job. You must prove the employer or one of its employees was negligent, but Texas law takes away several of the employer’s most common defenses, including the argument that you were careless yourself.
Key takeaways
- Workers’ compensation is optional for most private employers in Texas (Tex. Lab. Code § 406.002).
- If your employer is a non-subscriber, you can sue for negligence, and the employer cannot blame your own carelessness, assumption of risk or a co-worker’s negligence (Tex. Lab. Code § 406.033).
- Any waiver of your right to sue signed before the injury is void; a waiver signed after the injury is valid only if strict conditions are met.
- The general deadline to file suit is two years from the date of injury (Tex. Civ. Prac. & Rem. Code § 16.003).
What is a non-subscriber employer?
Texas is unusual: most private employers are not required to carry workers’ compensation insurance. Under Tex. Lab. Code § 406.002, an employer “may elect” to obtain coverage. An employer that does not is commonly called a non-subscriber.
Non-subscribers still have legal duties. Under Tex. Lab. Code § 406.005, employers must tell employees whether they have workers’ comp coverage, both when they are hired and through a notice posted at the workplace. The Texas Department of Insurance, Division of Workers’ Compensation says non-subscribers must post the no-coverage notice in English and Spanish and give written notice to new employees.
How do I find out if my employer has coverage?
- Look for the coverage notice posted at your workplace, or in your hiring paperwork.
- Ask your employer or human resources directly.
- Contact the Texas Department of Insurance, which tracks employer coverage.
Why the law favors injured workers in non-subscriber cases
In a workers’ comp system, you usually cannot sue your employer, but you receive benefits without proving fault. When an employer opts out, Texas gives injured workers a different trade. Under Tex. Lab. Code § 406.033, a non-subscriber sued by an injured employee may not defend itself by arguing that:
- the employee was contributorily negligent (careless);
- the employee assumed the risk of injury; or
- the injury was caused by a fellow employee’s negligence.
The Texas Supreme Court has held that because of this statute, a non-subscribing employer is not entitled to have the jury reduce damages based on the injured employee’s share of fault (The Kroger Co. v. Keng, Tex. 2000). In most other Texas injury cases, a plaintiff’s own fault reduces the recovery, so this is a significant difference.
Defenses the employer can still raise
Section 406.033 still lets the employer defend on the grounds that the employee intended to bring about the injury, or that the employee was intoxicated at the time. The employer can also argue that it was not negligent at all, or that its negligence did not cause the injury.
What you have to prove
The trade-off is that you must prove negligence. Under § 406.033, the employee must show the employer, or an agent or servant acting within the general scope of their employment, was negligent. Common examples of employer negligence include:
- failing to provide safe equipment, tools or protective gear;
- failing to train or supervise workers for a dangerous task;
- understaffing a job so it cannot be done safely;
- ignoring known hazards, such as wet floors, unstable loads or broken machinery; and
- a co-worker’s or supervisor’s careless act on the job.
Evidence matters. Report the injury in writing, get medical care right away, write down the names of witnesses, and take photos of the scene and equipment if you can safely do so. Keep copies of anything you sign.
If someone other than your employer contributed to the injury, such as an equipment manufacturer, a property owner or a general contractor, you may also have a separate claim against that party. That is true whether or not your employer carries workers’ comp.
Be careful about what you sign after an injury
Some non-subscribers offer an injury benefit plan, and some ask injured workers to sign releases or waivers. Texas law limits these:
- A waiver signed before an injury is void and unenforceable (Tex. Lab. Code § 406.033).
- A waiver signed after an injury is valid only if it is voluntary and knowing, signed no earlier than the 10th business day after the initial report of injury, signed after you received a medical evaluation from a non-emergency care doctor, in writing, and conspicuous on the face of the agreement (§ 406.033).
Some employers also require employees to sign arbitration agreements, which may change where and how a claim is decided. If you are handed paperwork after a workplace injury, do not sign it until you understand what rights you may be giving up.
Deadlines and damages
A negligence lawsuit against a non-subscriber is generally subject to Texas’s two-year statute of limitations for personal injury, Tex. Civ. Prac. & Rem. Code § 16.003(a). If a worker dies, a wrongful death claim generally must be filed within two years of the death (§ 16.003(b)).
Unlike workers’ comp benefits, which are set by formula, a negligence lawsuit can seek the full range of damages Texas law allows, such as medical expenses, lost wages and lost earning capacity, physical pain, mental anguish and physical impairment. Recovery of medical expenses is limited to the amounts actually paid or incurred (Tex. Civ. Prac. & Rem. Code § 41.0105).
Learn more on our workplace injuries page, our wrongful death page, our premises liability page, and our Texas injury law guide.
Talk to a Texas injury lawyer
If you were hurt at work and your employer does not carry workers’ comp, a lawyer can help you understand your rights before you sign anything. Borunda & Fomby PLLC is based in Houston and represents injured workers throughout Texas. Consultations are free, and there is no fee unless we win. Call (713) 930-4878, available 24/7, or contact us online. Se habla español.
This article is general information about Texas law, not legal advice, and reading it does not create an attorney-client relationship. Every case is different.