Workers' Comp: When You Can Sue Your Employer

Injured employees are usually limited to workers' comp benefits, but they may be able to sue their employers in some circumstances.

The workers’ compensation system has been called a “grand bargain.” Employees can receive workers’ comp benefits for their work-related injuries or illnesses no matter who was to blame, but they can’t sue their employers to seek additional damages like pain and suffering. There are exceptions to this general rule, however. You may be able to sue a third party (someone other than your employer) who was responsible for your injury, such the manufacturer of a defective product or the other driver in a work-related car accident. And depending on where you live, you might be allowed to sue based on certain kinds of conduct by your employer.

If Your Employer Intentionally Hurt You

Most states allow employees to sue outside of the workers’ comp system if they were injured because of their employers’ intentional actions. But the laws—and the courts—in these states use different standards to determine what kinds of conduct count. Usually, employees must prove that their employers deliberately and specifically intended to hurt them. Negligence—even gross negligence—isn’t enough. In Arizona, for example, the employer must have personally and purposefully acted with the direct goal of injuring a worker (Ariz. Rev. Stats. § 23-1022 (2018)). One example of this kind of conduct would be when your employer physically assaulted you.

A handful of states, such as Louisiana, apply this “intentional act” exception to situations where the employer took actions that were “substantially certain” to cause an injury (see Broussard v. Smith, 999 So. 2d 1171 (La. Ct. App. 2008)). And a few states allow lawsuits when the employer consciously chose not to take corrective action despite knowing that a dangerous condition was certain to result in injury. In Florida, the law also requires that the employer deliberately hid the danger so that employees couldn’t take steps to avoid injury (Fla. Stat. § 440.11(1)(b) (2018)).

The “intentional act” exception almost always applies only to conduct by your employer, not supervisors or coworkers. But there are rare exceptions. In Idaho, for example, you may be able to sue if your employer authorized or induced other employees to hurt you through deliberate, unprovoked physical aggression (Idaho Code § 72-209) (2018).)

When Your Employer Doesn’t Have Workers' Comp Insurance

Almost every U.S. state requires the vast majority of employers to have workers’ comp insurance. If your employer doesn’t have the legally required insurance, most states will let you sue in civil court for your injuries. Although this gives you the opportunity to get more money than the workers' comp system provides, it also means you’ll have to prove your employer was at fault for the injury. And you won’t get any compensation unless and until you win your lawsuit or reach a settlement, which can take a long time.

Several states, like California, have special funds that provide workers’ comp benefits for injured workers whose employers don’t have legally required insurance. If you’re in that situation and live in one of those states, you can either file a workers’ comp claim or sue your employer.

Other Exceptions to the Workers’ Comp Limitation

Depending on where you live, there may be other exceptions to the general rule that limits injured employees to the workers’ comp system. For example:

  • In some states, employees can sue their employers for injuries related to civil rights violations like sexual harassment or racial discrimination. (See, for example, Claxton v. Waters, 34 Cal.4th 367 (Cal. 2004), Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla. 989), and Haw. Rev. Stat. § 386-5 (2018).)
  • Pennsylvania and California allow lawsuits when an employee’s injury or illness was aggravated because the employer covered up or lied about the injury (Cal. Labor Code § 3602 (2018); Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992)).
  • Texas allows lawsuits based on an employer’s “gross negligence,” omission, or intentional act, but only when the employee died as a result (Tex. Lab. Code § 508.001 (2018)).

Speaking With a Lawyer

The rules for workers’ comp are complicated and different from state to state. Even in states where the “intentional act” exception applies, it can be extremely difficult to prove that your employer meant to hurt you or knew that its actions (or failure to act) would result in injury. If you believe that your employer’s conduct caused your injury or illness, you should speak with a lawyer as soon as possible to learn about your legal options. An attorney experienced in workers’ compensation can explain how the rules in your state apply to your situation, and can help protect your rights.

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