Personal injury Library

What Are My Rights if My Employer Is a Non-Subscriber?

If you've been hurt on the job in Texas, one of two things usually happens: you have the right to receive automatic benefits if your employer participates in the workers' compensation program, or your employer is a non-subscriber to workers' comp and you don't have that right. If you find yourself in the latter position, you're probably wondering, "Well, what ARE my rights?"

Answer: The only true right you have under Texas law is the right to sue your employer for your losses. However, you may also enjoy a few "perks" that can be thought of as "rights" AND you may also have rights under federal ERISA law.

But, the way it all works is a little tricky, so let's clarify below.

A Little Background Info

Texas non-subscriber work injury law is an odd duck. In every other state, companies MUST participate in a workers' comp program, yet about 1/4 of Texas companies go out of their way to avoid participation in the Texas workers' comp program.

To better understand your rights, it's useful to know why and how that reality came to be. It's a fairly big topic, so rather than covering it here, we will instead link you to an article where you can read about how and why Texas is the only state where companies can opt-out of the workers' compensation program.

The fruits of your employer's decision to opt out of the workers' comp program include the primary right you have—the right to sue your employer for your injuries—as well as the "perks" we hinted at earlier. With that out of the way, let's jump into a close examination of your rights.

You Have the Right to Sue Your Employer Under Texas Law, if They Are Non-Subscribers

The Rule

(d) [In order to obtain compensation from a non-subscribing company] the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.

Tex. Labor Code § 406.033 (d)

This is the rule which lays out your most basic right as an injured worker who is employed by a non-subscriber. You have the right to sue your employer and obtain compensation if you can prove they were negligent.

You Also Enjoy Several Perks under Texas Law

1. You Have the "Right" to Not Be Subject to The Contributory Negligence Defense

The Rule

COMMON-LAW DEFENSES;  BURDEN OF PROOF.  (a)  In an action against [a non-subscriber] employer . . . it is not a defense that:

(1) the employee was guilty of contributory negligence;

Tex. Labor Code § 406.033(1)

This provision says that your employer can't point the finger back at you and say that you were also negligent. If your carelessness and your employer's carelessness combined to produce your injury, it's of no consequence, since this law prohibits your employer from raising that argument.

2. You Have the "Right" to Not Be Subject to The Assumption of the Risk Defense

The Rule

COMMON-LAW DEFENSES;  BURDEN OF PROOF.  (a)  In an action against [a non-subscriber] employer . . . it is not a defense that:

(2) the employee assumed the risk of injury or death; or

Tex. Labor Code § 406.033(2)

Assumption of the risk at its core means that you understood the consequences of something before you did it, so you alone are responsible for those consequences. In the old days, employers were allowed to raise the argument of assumption of the risk to defend against work injury lawsuits. The argument was used like: "We can't be responsible because the worker knew the job was dangerous." Now, employers are barred from raising that argument.

3. You Have the "Right" to Not Be Subject to The Fellow Employee Defense

The Rule

COMMON-LAW DEFENSES;  BURDEN OF PROOF.  (a)  In an action against [a non-subscriber] employer . . . it is not a defense that:

(3) the injury or death was caused by the negligence of a fellow employee.

Tex. Labor Code § 406.033(3)

Simply put, if your coworker injured you accidentally, your employer can't use that against you like they used to be able to. Your workplace can't pass the blame onto a possibly negligent employee. As the employer, they are responsible for their staff, and thus their staff's negligence.

4. You Have the "Right" to Have a Pre-Injury Waiver Voided

The Rule

COMMON-LAW DEFENSES;  BURDEN OF PROOF.  (a)  In an action against [a non-subscriber] employer . . . it is not a defense that:

(e) A cause of action described in Subsection (a) may not be waived by an employee before the employee's injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee's injury or death is void and unenforceable.

Tex. Labor Code § 406.033(e)

With this rule, any agreement you signed before you were injured that stated that you either (a) assumed the risk of your job, or (b) waived your right to sue is automatically voided. These waivers have absolutely no bearing on your case. This is different from an arbitration agreement, though, as arbitration agreements are binding.

5. You Have the "Right" to Have Post-Injury Waivers Voided in Certain Circumstances

The Rule

COMMON-LAW DEFENSES;  BURDEN OF PROOF.  (a)  In an action against [a non-subscriber] employer . . . it is not a defense that:

(e) A cause of action described by Subsection (a) may not be waived by an employee after the employee's injury unless:

(1) the employee voluntarily enters into the waiver with knowledge of the waiver's effect;

(2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;

(3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and

(4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.

(f) [The waiver provisions] must be conspicuous and appear on the face of the agreement. . . the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors.

Tex. Labor Code § 406.033(e, f)

This provision of the law lays out five steps that a post-injury waiver must include to be considered valid in a non-subscriber work injury dispute. The waiver must follow these requirements, or else it is void. Let's take a closer look at each:

  1. You need to have understood what you agreed to.  If your employer asks you to sign something in exchange for money or treatment after your injury, they're typically asking you to sign a liability waiver. A liability waiver takes away your ability to file a lawsuit against your employer. This rule is in place to protect you from signing away your rights without knowing.
  2. You can't sign a waiver until at least ten days after you were injured. If the waiver was signed before ten days had passed since the incident, the waiver is not valid.
  3. You must see a non-emergency doctor before signing a waiver. A non-emergency doctor would be your primary care physician, an urgent care doctor, or a specialist. You need to have your injury evaluated by one of them before signing. This helps you understand how bad your injury is and its effect on your health.
  4. Your employer must be explicit about what their goal is. Your employer's intent in providing you with a liability waiver must be laid out clearly in the document. Your goal, or consequences, in signing the waiver must be specifically stated also.
  5. The stipulations of your employer's liability waiver must appear in a text larger than the rest of it's type, or, in a contrasting color. This technicality ensures that the employers' waiver is legible for the injured worker. But, if the waiver you signed had it's provision in the same size, or color, font as the rest of the document, your waiver is invalid. Basically, this is to protect you from signing a document where they cram the waiver text into an innocuous paragraph.

In short: If you signed a post-injury waiver from your employer, and it doesn't follow these guidelines, it has zero effect on your non-subscriber work injury dispute.

So, as you can see, there are several rules and regulations in place that are a great boon to you as an employee of a non-subscriber employer, in the event of a work injury dispute.

But You May Also Have Rights Under Federal ERISA Law

Now, when a company is a non-subscriber, that doesn't necessarily mean that they won't provide you with any benefits at all. Many companies voluntarily provide a private work injury benefit plan. Often, these plans look a little like workers' compensation benefits, but that's just a coincidence. Non-subscribers who provide a private benefit plan do not get converted into subscribers just because they provide a benefit package. However, they may obligate themselves to you under federal law by doing so.


The Employee Retirement Income Security Act (ERISA) was originally developed to protect workers whose retirement plans were being abused by employers.

While ERISA usually only applies to healthcare, pension, and retirement plans, in Texas, ERISA steps in and governs non-subscriber work injury benefit plans. Under ERISA, employers who offer these plans have to meet certain standards to show they protect the well-being of their employees. By requiring workplaces to meet certain standards, ERISA gives you another set of rights—the right to receive your benefits, and the right to receive them exactly as they are written.

Think about that for a second. Texas law just says that you can sue and that your employer can't use certain defenses. But federal law says that if they take that extra step and create their own benefits plan, the plan is subject to regulation by the federal government.

Now, let's go into these two rights in more detail

What Rights Does ERISA Provide?

1. You Have the Right to Receive Your Work Injury Benefits

The Rule

(c) Declaration of policy

It is hereby declared to be the policy of this title—

(3) to increase the likelihood that participants and beneficiaries under single-employer defined benefit pension plans will receive their full benefits.

29 U.S. Code §1001b.(c)(3)

ERISA holds that, as an employee, you deserve to receive the benefits promised to you by your employer. When your employer fails to deliver on that promise, ERISA's regulatory power steps in. This rule makes your employer meet their obligation to you or face certain consequences.

The primary purpose of ERISA is to make sure that an employee receives their benefits by a company following it's fiduciary responsibilities. A fiduciary is a fancy word that basically describes someone, or an organization, that is legally responsible for taking care of something valuable on the behalf of another, such as money or property.

With ERISA, it doesn't matter why, or how an employer is withholding the benefits they promised, it just matters that they are not providing you with them. ERISA provides a legal tool for employees to hold their employers accountable, and receive the benefits that were promised.

If you don't get the benefits you were promised, you can file with the Employee Benefits Security Administration against your employer to start the process to receive those benefits. At the same time, since your workplace is a non-subscriber, you can sue for compensation as an injured employee. In this situation, you can have your cake and eat it, too.

2. You Have the Right to Receive Your Benefits Exactly How they Are Written

  1. Every employee benefit plan shall be established and maintained pursuant to a written instrument ...
 29 U.S.C. § 1102(a)(1)

If an employer provides a benefit plan to employees, ERISA's purpose is also to make sure that an employee should receive their benefits exactly how the company has written them. So if you only receive part of your benefits, you are due all of them.

As ERISA disputes are separate from your non-subscriber compensation suit, your employer won't try to deny you the benefits you rightfully deserve by using any of the arguments you read above.

Instead, your employer has to show that they are not obligated to provide you with benefits per your work benefit agreement. This is proved true or false through a comprehensive review of all documents your employer has regarding your work injury, and injury claim.

In a nutshell: If your company is supposed to give you specific benefits, you will get those specific benefits, or the employer can be subjected to legal action.


As you can see, as an injured worker who works for a non-subscriber, there are many opportunities to receive compensation or benefits for your work injury.

One of the best things you can do is call an experienced non-subscriber work injury attorney to guide you through this process. Here at Grossman law, over the last three decades, we've helped hundreds of injured workers receive compensation for their injuries. We know what it takes to hold your employer accountable. Our attorneys are available 24/7, and would be happy to address any concerns you have for no cost.

Prev Post Next Post