What’s this all about?
Texas’ work injury laws are more complex than that of any other state. Why? Because there are actually three different sets of rules that can potentially apply to an injured worker (or to the family of a deceased worker) depending upon the specifics of the accident in question. As you can imagine, it can get a little tricky for injured workers and their families to know which set of rules, and more importantly, which type of compensation, apply to their specific case.
The good news is that, having won hundreds of work injury cases, we understand the law very well, and I think we’ve found a way to help you make the most sense of your legal rights. In this article, we’ve broken it all down into independent sections. So, to find which set of laws applies to you, just click on the text that best describes your or your loved one’s situation.
Questions answered on this page:
- How does Texas work injury law work?
- What rights do injured workers have?
- What rights do contract employees and subcontractors have?
- What kind of compensation is available to injured workers?
- Do you need a lawyer to file suit for work injury compensation?
We need to first identify whether the injured worker was an employee or an independent contractor. Click the option that best applies to your situation.
At the time of the injury, the injured worker was an:
- Independent Contractor
- Regular employee
Why is this important? The thing that makes a work injury case different from any other personal injury or wrongful death case is the nature of the relationship between the two parties to the case: the injured worker and their employer. You see, if you’re injured in a car accident with a random stranger, you have no special relationship with them. Even though the law requires them to avoid harming you, it requires them to only do the bare minimum toward accomplishing that end.
On the contrary, when a company hires an employee, this does create a special relationship; one where the employer is seen as the “master” and the employee is seen as the “servant.” Naturally, masters must go out of their way to ensure the safety of their servants, so the same thing applies to employers and employees.
So, unlike the random stranger who hurts you in a car accident and doesn’t owe you a special duty of care, an employer (under most circumstances) does owe an employee a special duty of care: the duty to provide a safe work environment. To fulfill this duty, an employer has to do far more than the bare minimum. In fact, in order to fulfill their duty to provide a safe work environment, there are many specific duties that they incur along the way. Chances are that if there is something that makes the workplace safer, the law probably says the employer has to do it.
As such, when the injured worker is an employee, the law makes it pretty clear that the employer needs to protect them. But when the injured worker is an independent contractor, things get a little more complex.
Cases Involving Injured or Killed Independent Contractors
- Duties owed by employer to independent contractor: The employer must take reasonable care to avoid conduct that can foreseeably inflict harm upon an independent contractor (Really, this is just the plain-old reasonable person standard that we’re all bound by).
- Is compensation available?: Yes. Under the right circumstances, an injured independent contractor can sue for all of the normal damages available under Texas law.
- Rights of a contract worker: Contract workers have the right to sue the person or company who hires them if an injury occurs that was caused by the employer’s negligence.
- Your likelihood of success: Good. Harder to win than typical work injury cases, but still winnable.
Let’s get one thing straight about independent contractors. Independent contractors are not, technically speaking, employees. In the eyes of the law, independent contractors are really their own company. They’re essentially freelancers, in that, they’re brought in on an as-needed basis and they do not work for the employer regularly. The important thing to understand is that independent contractors don’t actually have “work injury” cases when they are hurt. Instead, they just have normal negligence cases.
This is a little tricky to understand, but the bottom line is that employers who hire real-deal employees are required to go out of their way to protect their employees, but they are not required to do the same for contractors. The relationship between the company and a contractor is no different than the relationship between the company and a customer or the company and anyone else in the world. They owe the independent contractor some duty to not inflict harm upon them, but it pales in comparison to the heightened duty that the company would owe to an actual employee.
All that to say, since companies don’t owe independent contractors the same duties that they owe to employees, there are fewer circumstances under which an independent contractor can sue an employer. Simply getting hurt on the job isn’t enough. The injury must be caused by the company’s negligence. Your case will be treated much the same way that an injured customer’s case would be treated, not the way that an employee’s case would be treated. But that doesn’t mean that such a case isn’t a good case. It very well may be a great case; it’s just a different kind of case than an employee would have.
Think of it like this. If Bob has a contract with a rental car company that says he agrees not to cause an accident, and then he causes an accident with me, both I and the rental car company have the right to sue Bob. But we’d be suing him for different things. The rental car company would sue him for breach of contract, and I’d sue him because he was negligent.
That is analogous to the way that an independent contractor work injury case works. Imagine that a contractor is performing labor for ABC Company, and working along side the contractor is an actual employee of ABC Company. Imagine further that they are both injured in an accident. They both have claims against ABC Company, but they each have a fundamentally different type of claim. That’s the point we’re making. Both of them could be good cases, it’s just that the contractor’s case will typically be more challenging to win.
One final thought. Many employers like to deliberately miscategorize real employees as contract workers. They do this precisely because it makes it harder for such employees to get compensation. The bottom line is that it doesn’t matter if they call you a contractor or an employee. It all comes down to how they treat you and control you. If they tell you what to do, how to do it, provide equipment and training, etc., then you’re not actually a contractor. Instead, you’re an employee. If this describes you, then read the section below labeled “employee.”
Cases Involving Injured or Killed Employees
- Duties an employer owes to an employee: The duty to provide a reasonably safe work place, duty to train, duty to supervise, duty to exercise reasonable care in hiring, duty to establish safety rules, duty to furnish safe instrumentalities, duty to provide adequate help to employees, duty to warn employees about non-obvious hazards.
If the injured worker was indeed an employee of the company they performed labor for, then there are two different types of claims that the injured worker or their family may have:
- A workers’ compensation case
- A non-subscriber work injury case
It all hinges on whether the employer they worked for subscribes to a Texas workers’ compensation policy or whether they are non-subscribers. Simply put, if the employer is a subscriber to workers’ comp coverage, then the employee typically cannot sue the employer, limiting the worker’s rights. But if the employer is a non-subscriber, then the injured worker can sue.
Choose the option that best describes your situation:
- The employer in my case is covered by a workers’ compensation policy.
- The employer in my case is a non-subscriber to workers’ comp.
Texas law makers wrote our state’s work injury laws in such a way that when an employer buys workers’ compensation coverage, they get shielded from lawsuits by injured workers. Employees who work for companies covered by a workers’ comp policy lose the right to sue their employers in the event of an injury, and families of workers who are killed on the job can only sue under special circumstances.
Typically, the only compensation made available to injured workers or their employees are weekly benefit checks. The workers’ compensation system is really a type of work injury welfare system that is designed to protect negligent employers from lawsuits first, and provide (nominal) compensation to employees second. It is also important to note that MOST (not all) workers’ compensation cases are handled through the workers’ comp system, which has nothing to do with juries and courts and judges. It is an alternative system to court.
Let’s talk about the compensation available.
If the employer has workers’ comp and the worker was injured on the job:
- Compensation available: Limited income benefits paid in the form of a weekly check and medical costs covered. Click here to learn about the benefits and compensation available in a workers comp case.
- Your rights: You have the right to have all emergency medical treatment paid for by the carrier (virtually no questions asked), the right to receive income benefits if you qualify (read more about income benefits here), and you have the right to not be fired or retaliated against for filing a claim.
- Your likelihood of success: Pretty much guaranteed. When an employer buys workers’ comp coverage, they are required to cover just about any injury that an employe sustains, irrespective of the whose fault the accident was. Under very few circumstances can an employer avoid compensating an injured worker.
If the worker is killed on the job through ordinary negligence:
- Compensation available: Up to $6,500 to cover funeral expenses plus a portion of the worker’s wages paid to spouse or minor children, subject to termination if the spouse remarries.
- Your rights: You simply have the right to the aforementioned compensation (but can also file suit if gross negligence caused your loved one’s demise).
- Your likelihood of success: Virtually guaranteed. As we mentioned earlier, the benefits paid to the surviving family members are very minimal. The sad byproduct of which is that the employer essentially avoids all accountability and they’re never punished if they were negligent. Nevertheless, the benefits are rarely disputed by the comp carrier and are rarely fought over. The benefits are usually paid without incident.
If the worker was killed on the job due to gross negligence:
- Compensation available: The family of the deceased worker may sue for punitive damages (capped at slightly less than $1,000,000.00). Further, the family can receive up to $6,500 to cover funeral expenses plus a portion of the worker’s wages paid to spouse or minor children, subject to termination if the spouse remarries.
- Your rights: As mentioned earlier, if the employer buys workers’ comp coverage, they are immune from lawsuits for fatalities caused by negligence. However, under the Texas Constitution, it would be illegal for our state’s workers’ comp laws to forbid you from suing when you loved one’s death was caused by gross negligence. Therefore, you retain the right to sue the employer if such gross negligence caused the fatality in question.
- Your likelihood of success: These cases are extremely challenging. Our firm has won many gross negligence workers’ compensation cases, but very few other firms can say the same thing. The reason for this is that you can only win if you prove that the employer was grossly negligent, and proving gross negligence under Texas law is a high standard since it requires you to show a wanton and reckless disregard for the safety of the worker. Despite the challenge, our attorneys think it is always worth trying, and we have a long history of winning cases that other firms have said are unwinnable.
When an employer is a non-subscriber to workers’ compensation coverage (meaning that they opt out of workers’ comp coverage), that can actually be a very good thing for injured workers or their families. You see, when an employer opts in to WC, injured workers can’t sue their employer, even if the employer is 100% responsible for the workers’ injury. But when the employer opts out of workers’ comp coverage (thereby making them a non-subscriber), employees retain the right to sue the employer, the same way you can sue anyone else that hurts you.Non-Subscriber Case FAQ: Do I sue my boss, the company, or both? Non-Subscriber Case FAQ: If I'm injured on the job, can my boss fire me? Non-Subscriber Case FAQ: Will my case be heard by a judge, jury, or arbitrator? Non-Subscriber Case FAQ: What if I have prior injuries? Non-Subscriber Case FAQ: Employee or Independent Contractor?
However, it’s actually even more favorable than that. When you sue any random person who injures you, the law allows them to fight back against your claim by way of using a multitude of different defense arguments against you. Arguments like, “assumption of the risk,” “comparative fault,” “act of God,” and so on. These defenses are often abused by wrongdoers who use them to fight back against perfectly legitimately lawsuits, and sometimes juries find their arguments compelling. But, when Texas lawmakers created our state’s modern work injury laws, they expressly forbid non-subscriber employers from using all of their most powerful defenses.
Consequently, if a worker is injured on the job and the employer is a non-subscriber, there’s not a whole lot that the employer can do to fight back against the injured worker. This lack of defenses is our lawmakers’ way of telling employer, “You should’ve bought workers’ comp coverage.”
If the employer is a non-subscriber to Texas workers’ comp and the worker was injured or killed on the job:
- Compensation available: The injured worker can sue for all of the normal personal injury damages Texas law allows anyone to sue for (i.e. there are no restrictions in a non-subscriber case like you find in a workers’ comp case). If the worker was killed on the job, their family can sue for all of the normal wrongful death damages and survival damages that Texas law allows anyone to sue for in any other type of fatal accident (again, unlike a workers’ comp case, there are no restrictions on the compensation you can receive).
- Your likelihood of success: Very good, IF your attorney knows what he’s doing. As we mentioned earlier, these cases are strong because the employer is forbidden by law from using most of their best defense arguments, which leaves them exposed in a jury trial. But, there are no shortage of lawyers out there who handle non-subscriber work injury cases and do a bad job, so don’t make the mistake of assuming that just because the law is on your side that these cases are something that any lawyer can handle.