What Are Your Rights as an Injured Texas Worker?:
In casual conversation, or especially in heated conversations, it is not uncommon to hear someone say, "I know my rights!" In most instances what this really means is that a person knows they have rights. As to where these rights come from or what they actually are, the average person probably doesn't have a lot of specific knowledge.
The lack of specific knowledge of the law can be particularly problematic after someone suffers a work injury. Nothing is more frustrating than assuming that one has a right, like the ability to sue someone who has injured you, only to find out that in particular circumstances that right does not actually exist under the law, or has been replaced by a state-run benefits plan.
The attorneys at Grossman Law Offices know that injured workers don't want a bunch of legal jargon when getting an answer to the question, "What are my rights as an injured Texas worker?." As such, in this article, our workers' compensation attorneys will lay out what your rights are and where they come from, in plain English.
Questions answered on this page:
- As an injured worker, what are my rights under Texas law?
- Can I be compensated for my injuries and how do I go about doing that?
- Does my employer have a responsibility to pay me?
- Can my company fire me or retaliate if I bring forward a work injury claim?
Rights are Meaningless Without an Accompanying Remedy
Before we can explain what your rights are, you first need to understand how having rights works. You see, some rights are inherent rights that are not given to you, rather you're seen as having been endowed with these rights by The Almighty (or nature, if you will), and other rights are man-made rights.
For instance, the right to defend oneself is considered a natural right, but the right to receive unemployment benefits is a right that was fabricated by lawmakers. Now, frankly, it doesn't matter how or why you have a right, if the law says you have some right, then that's all there is to it.
But here's the tricky part... Having a right is essentially meaningless unless the law also provides an appropriate legal remedy when and if your rights are violated. Think about that for a second. You have the right to not be harmed by another person; say, an attacker who wishes to punch you in the face. But does having that right mean that you cannot possibly be punched in the face? No, not at all. The right to be free from harm itself does not prevent the harm. But the existence of that right does imply that if your right is violated or breached, there will be something that you can do about it; some remedy can be sought.
The point in all of this is that in any scenario where the law seeks to protect you from some wrongful act, there has to be both a right AND a remedy, or the right itself is useless. Under Texas law and federal law, all workers have the right to a safe work environment. In particular, OSHA has promulgated many regulations, all of which provide some type of specific right to be protected from a specific type of possible harm. That's wonderful, but when an employer chooses to ignore these rules and, in doing so, chooses to violate your right to a safe workplace, the big question is what is your remedy? What can you do about it?
So, as you can see, when one right is violated, it gives rise to a remedy, which is essentially a new type of right that you have been granted only because another right was violated. They go hand in hand. Consequently, the majority of our focus in this article will be on describing the rights you gain to seek a remedy once a violation has already occurred. Why? Because if you've been injured, we could talk all day about what your employer should have done, but it's a little late for that. Now we need to focus on what you can do.
Under Texas law, injured workers have EITHER the right to sue their employer or to file for workers' comp benefits, but the choice is made for you by your employer.
This is a concept that seems confusing and foreign to many injured workers: If your employer opts in to Texas' workers' compensation program, you have one set of rights, and if they opt out, you have another set of rights. You don't get to choose which set of rights you have, your employer chooses for you when they either opt in or out of the workers' comp system.
The whole idea behind any state's workers' comp system is that lawmakers take away the rights of an employee to sue their employer for a work injury. Instead, they provide a type of work injury benefit plan that pays workers more like an unemployment benefit system than like a court case. Again, if your employer buys into the workers' comp system, your right to sue them is taken away and you are instead given the right to file for benefits paid by the workers' compensation carrier.
But not all companies in Texas wanted to have their employees covered by a workers' comp plan. Many employers would rather take their chances in court. As such, lawmakers recognized this and allowed Texas companies to opt out of the workers' comp system. For employers who opt out, normal personal injury law applies (for the most part), and employees who are hurt retain the right to sue their employer when an accident occurs.
As you can see, the rights you have are dictated by what type of work injury coverage your employer has.
Rights You'll Have if Your Employer Does Subscribe Workers' Compensation Coverage
If your employer does provide workers' compensation coverage, you cannot sue them for injuries. This is a scenario in which your employer has opted in as a subscriber. This is good for them mostly and less convenient for you. Instead of having a right to sue, you are eligible to receive benefits in several forms, such as Income Benefits that are designed to supplement your lost wages and Medical Benefits, which are fairly self explanatory.
The whole idea behind a workers' comp claim is that lawmakers have taken away your right to sue your employer and provided a benefit plan that is supposed to make it easier for you by doing away with your access to courts, juries, and litigation, and replacing them with automatic benefits that are paid irrespective of fault. The reality, however, is that all too often, your "automatic remedy" isn't automatic.
The amount paid to you or your family for these benefits is limited, based on a predefined formula. And one of the worst parts is that your employer somewhat gets off the hook. When a company has workers' comp coverage, it turns into a no-fault situation, meaning that it doesn't matter who is at fault for the injury even if your company is totally liable, it just means that your company's insurance carrier has to pay for your injuries. There's never really any finding of fault on the part of the employer. Other than an increase in workers' comp premiums, there are really no consequence for negligent employers under workers' comp.
Technically, you can opt out of your employer's workers' compensation coverage individually when you begin your job (Click here for info on Opting Out of Your Employer's Workers' Compensation Coverage), but that can be a whole other mess because your employer can fire you for doing so.
Further, when your employer has workers' compensation coverage, they cannot fire you in retaliation for you filing a claim. If they do, it creates a right for you to sue for a labor law violation.
Rights You'll Have if Your Employer Does Not Have Workers' Comp
In this scenario where your employer has opted out of workers' compensation coverage, they are referred to as non-subscribers, and retain the right to seek a remedy through the court system, just as you would against anyone else whose negligence caused you to sustain an injury. Since you have the right to bring forward a lawsuit against an employer, one upside to a non-subscriber case is that the employer can be held amply accountable by a jury.
One consequence of non-subscriber lawsuits is that they are good for sending a message to other employers who might also feel inclined to bend the rules regarding workplace safety, but it's also good in the sense that injured workers get to be compensated for all of their losses. Unlike a workers' comp claim wherein the only remedy for workers is that they can be paid benefits, in a non-subscriber case, injured workers can sue for all of their losses and obtain compensation in the traditional sense.
With all that being said, here's the reality of your rights as an injured worker.
Put simply, employers are required to provide their workers with a safe place to work. If this isn't happening, then they're just setting people who are just trying to earn a living up for an injury. Once an injury occurs, injured workers gain the right to seek a remedy in the form of a workers' comp benefits claim or in the form of a lawsuit against the employer.
If you're an injured worker and would like more information, or to discuss your work injury case, call Grossman Law Offices at (855) 326-0000. Our experienced accident attorneys can explain what your rights are, in plain English, with no legal jargon. Grossman Law Offices has been fighting, and winning, on behalf of injured Texas workers for the past 25 years.
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