What If My Employer Doesn’t Have Workers’ Compensation Insurance? Options for Injured Employees
Texas is the only state in the country that does not require most private employers to carry workers’ compensation insurance. While many Texas employers do subscribe to the state workers’ compensation system, a significant number do not. These employers are called “non-subscribers,” and if you work for one and get hurt on the job, your path to recovery looks very different from a standard workers’ compensation claim.
Shaw Cowart’s personal injury lawyers in Austin handle cases involving non-subscriber employers regularly. The rules are different, the stakes are higher, and the options available to you depend heavily on the specific facts of your situation.
How to Find Out If Your Employer Is a Non-Subscriber
Employers who subscribe to the Texas workers’ compensation system are required to notify their employees of their coverage status. If you were never given written notice that your employer carries workers’ compensation insurance, that is a signal worth investigating. You can also check the Texas Department of Insurance, Division of Workers’ Compensation database, which maintains records of covered employers.
If your employer is a non-subscriber and you are injured at work, do not assume you have no recourse. The absence of workers’ compensation coverage does not mean the absence of legal options — in some respects, it opens more of them.
Suing a Non-Subscriber Employer
When an employer opts out of the Texas workers’ compensation system, they give up one of the most significant legal protections that system provides: the exclusive remedy rule. Under standard workers’ compensation law, injured employees generally cannot sue their employer in civil court — the workers’ comp system is the exclusive remedy. Non-subscriber employers do not get that protection.
This means that if your non-subscriber employer’s negligence caused your injury, you can file a personal injury lawsuit against them in civil court. That lawsuit can seek compensation for medical expenses, lost wages, pain and suffering, and other damages that the workers’ compensation system would never cover.
There is another significant advantage in non-subscriber cases. Texas law strips non-subscriber employers of several common defenses that would otherwise be available in a negligence lawsuit. Specifically, a non-subscriber employer cannot argue that the injured employee assumed the risk of injury, that a fellow employee’s negligence caused the accident, or that the employee’s own contributory negligence was the primary cause of the injury. These are powerful defenses in ordinary negligence cases, and non-subscribers lose all of them.
What You Still Have to Prove
Losing those defenses does not mean winning a non-subscriber case is automatic. You still have to prove that your employer’s negligence caused your injury. That means establishing that the employer had a duty to provide a safe workplace, that they breached that duty in some specific way, and that the breach caused the injury you suffered.
Evidence matters enormously in these cases. Photographs of the accident scene, witness statements, maintenance records, training logs, and prior incident reports can all support a negligence claim. If the injury involved defective equipment, records showing the employer knew about the problem and failed to fix it are particularly valuable.
Non-Subscriber Benefit Plans
Some non-subscriber employers offer their own occupational injury benefit plans as an alternative to state workers’ compensation. These plans are governed by federal law under ERISA and vary widely in what they cover. Some are reasonably generous; others are structured primarily to limit the employer’s exposure.
If your employer has such a plan, you may be required to file a claim under it before pursuing other options. The plan documents will specify the procedures and deadlines. Missing a deadline under an ERISA plan can affect your rights, so it is worth reviewing those documents carefully and promptly after an injury.
Be aware that accepting benefits under a non-subscriber plan does not necessarily waive your right to pursue a civil lawsuit, but the interaction between plan benefits and civil recovery can be complicated. An attorney familiar with non-subscriber cases can help you understand how the two interact in your specific situation.
Practical Steps After a Non-Subscriber Injury
Report the injury to your employer immediately and in writing. Even without a formal workers’ compensation system in place, creating a written record of the incident protects you. Seek medical treatment promptly and keep all records of your care, your diagnosis, and any restrictions placed on your ability to work.
Do not give a recorded statement to your employer’s insurance carrier or third-party claims administrator without first speaking with an attorney. Non-subscriber employers often have liability insurance that covers workplace injury claims, and the adjusters handling those claims are working to minimize the employer’s exposure — not to help you recover fair compensation.
The Statute of Limitations
In a civil lawsuit against a non-subscriber employer, the standard personal injury statute of limitations applies — generally two years from the date of the injury. This is different from the one-year deadline that applies to many workers’ compensation claims. However, two years passes quickly when you are dealing with medical treatment and recovery, so acting promptly is still essential.
Getting the Right Help
Non-subscriber cases are more complex than standard workers’ compensation claims, but they also offer injured workers the possibility of full compensation — including damages that the workers’ comp system simply does not pay. The Austin workplace injury lawyers at Shaw Cowart have handled non-subscriber cases and understand both the civil litigation path and the benefit plan landscape. If your employer does not carry workers’ compensation insurance, that is not the end of your options — it may be the beginning of a stronger one.
