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The Not in Course and Scope of Employment Defense - Non-Subscriber Employers May Use This:

Years ago, Texas lawmakers created the workers' comp system to reduce the number of work injury lawsuits, but the interest of respecting the rights of employers to choose for themselves, they gave employers the option to opt in or out of workers' compensation coverage.

When a company opts out of workers' comp coverage, they are classified as "non-subscribers." Non-subscribers can be sued by injured workers. Further, as part of a plan to encourage all companies to participate in the Texas workers' compensation system, lawmakers eliminated many of the best defenses that non-subscribers have historically used to fend off lawsuits filed by inured workers. Suffice it to say, this empowers injured workers to seek compensation from their non-subscriber employers, and it leaves these companies vulnerable.

However, just because employers lost some of their best defenses, that doesn't mean that they lost ALL of their defenses. One still-potent defense argument that is often used by employers is called the "Course and Scope Defense." The course and scope defense is pretty straight-forward. Texas law says that workers are only afforded a safe work environment when acting in the course and scope of their employment (i.e. doing "work stuff"). As such, if the employer can argue that the injured worker was not in the course and scope of employment, the employer can avoid liability altogether.

As you can imagine, this defense is practically a "get-out-of-jail-free card" for the employer, so it's common for employers to raise this flag any time they can. In this article, Texas non-subscriber work injury attorney Michael Grossman will explain how the Course and Scope Defense works and how it is used and how it is abused.


Questions answered on this page:

  • When is an injury considered to not be within the course and scope of employment?
  • When can an employer use the Not in the Course and Scope of Employment Defense?
  • How can a lawyer help me in a work injury case if my employer claims my accident wasn't within the course and scope of my job?

What is the Not in the Course and Scope of Employment Defense?

Everyone agrees that it is NOT an employer's responsibility to pay compensation to a worker who suffers an injury when they're not at work. It would be ludicrous for a person to injure themselves on the weekend playing pick-up basketball and then come to work Monday and try to pass it off as a work injury. Furthermore, people often have to leave work during the day in order to go to doctor's appointments, pick up sick children, or tend to whatever persona errands pop up. Again, it would hardly be fair to hold employers accountable for accidents that occurred during those times.

The Not in the Course and Scope of Employment Defense is that tool by which employers defend themselves from liability for accidents, which were not work related. On the whole, the Not in the Course and Scope of Employment Defense is crucial to maintaining a system that is as fair to employers as it is to their injured employees. Imagine how reluctant many businesses would be to hire people if they were liable for their well-being 24 hours a day. Further, it would grant employers an unacceptable amount of control over their employees' lives if they could be held liable for anything, simply because someone worked for them.

Striking a just middle ground, The Not in the Course and Scope of Employment Defense holds that employers are only liable for their employees injuries when their employee was doing work-related activities. In it's simplest form, if an employee is on the clock and doing work-related activities, they are in the course and scope of employment. If they are not clocked in or doing work-related activities, they are not in the course and scope of employment.

Unfortunately, like many defenses, which are designed to give defendants just tools to defend themselves with, the Not in the Course and Scope of Employment Defense can be stretched and abused beyond it's original intent. Employers will argue that co-workers who were on paid breaks, who were running errands at the behest of their supervisor, or workers who were traveling out of town on company business were not in the course and scope of employment. While experienced defense attorneys are usually able to combat such misuses of the defense, an improperly used defense still has the potential to damage a Texas work injury case and must be taken seriously.

Examples of What's In Normal Course and Scope of Employment and What's Not

To get a better handle on how the Not in the Course and Scope of Employment is used, let's use some real-life examples to illuminate what we mean, as well as use these examples to see how an employer might attempt to wrongfully claim this defense.

  • An employer, Tim's Sandwiches, has a delivery service and Mary is their driver. Mary starts off her normal day, driving to her place of work (Tim's) and that commute is not within the course and scope of her employment. She gets to her workplace and clocks in (placing her within the course and scope), the first order comes in, and she needs to go deliver it. She gets in the Tim's Sandwiches van to drive the order out to the customer. While driving the van, she gets rear-ended pretty severely, and suffers neck injuries. Her employer may attempt to use the defense that since she was not at Tim's Sandwiches shop, that she wasn't within her course and scope of employment, but she was clearly doing a work-related task in a work vehicle for a work purpose. She was, clearly in fact, within the normal course and scope of her employment. Tim cannot begin to honestly argue this defense against her, if she were to take him to court for her work injury compensation.

What scenarios would the defense actually hold up? Here's a hypothetical example that may help to clarify:

  • Tim's at it again. One of his workers, John, has just ended his shift at the shop and is about to leave. He doesn't leave quite yet though. He sticks around the shop, even after he's clocked out, to talk to Mary. John wasn't paying attention and slipped on rug that was on the floor. John may attempt to take Tim to court over this injury, claiming that its a work injury and since Tim's a non-subscriber (opting out), that his company's negligence is responsible for John's injuries. But, this may be a time where the defense will hold up. As discussed, John was off the clock, was definitely not within the normal course and scope of employment, and therefore, his injury--at his own workplace consequently--was not actually work-related. Here, John cannot and probably shouldn't combat Tim's defense because it honestly holds up.

This defense can become particularly contentious when only one of the two criteria, being clocked in and doing work activities, are met. For example, suppose an employer asked an employee to pick up a toner cartridge for the office printer on their way home. On the way home the employee is struck by another vehicle and suffers some pretty moderate injuries. Was the employee in the course and scope of employment at the time of the accident?

As we have shown earlier, commutes are not generally part of the course and scope of employment. However, in this case, the employee was furthering the interest of her employer by picking up the toner cartridge, which would definitely qualify as being in the course and scope of employment. In an instance like this, an employer will most likely argue that since the employee was picking up the toner after hours, she was not in the course and scope of employment. In this scenario, the defense would likely fail, because the worker would not have been going to the store, but for the fact that the employer asked her to. This example shows that put most broadly, the course and scope of employment is whenever an employee is furthering the employer's interest.

What other defenses can non-subscribers use to defend themselves?

The Texas Labor Code allows non-subscribing employers to defend themselves in a work injury lawsuit. Some of the most common defenses include:

Our Work Injury Attorneys Are Here to Help You Determine: What's in Course and Scope of Employment and What's Not?

Over the past quarter of a century that we've represented injured Texas workers, we've seen employers make false accusations and ridiculous claims that the injury didn't happen within the course and scope of employment. Then again, we've seen people who were injured at their workplace but it wasn't technically a work-related injury, so the defense their non-subscribing employer used actually held up.

Regardless of the situation, an experienced work injury attorney is essential to having the best non-subscriber work injury case possible. The work injury attorneys of Grossman Law Offices, located in Dallas, TX, have the knowledge and experience you need for a work injury lawsuit. Call us at (855) 326-0000 for a free consultation. We answer the phone 24/7.


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