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Yes. If your Texas employer does not carry workers’ compensation insurance, you can sue it for negligence and ask a jury for your full damages. Section 406.033(a) of the Texas Labor Code then bars that employer from blaming you, saying you accepted the risk, or blaming a coworker. Schiffer Law Firm in Houston handles these cases for injured workers across Texas.
The step that cannot wait is finding out whether your employer subscribes. Your employer had to tell you when you were hired and post a notice at work under Section 406.005 of the Labor Code, but many workers were never told clearly. If you were handed a company “injury benefit plan” instead, read it before you sign anything. Those plans often carry short reporting deadlines and an arbitration clause. Call 713-521-0059 and we will check your employer’s status.
Texas law makes workers’ compensation coverage a choice for most private employers. Section 406.002(a) of the Labor Code sets the rule. It provides: “Except for public employers and as otherwise provided by law, an employer may elect to obtain workers’ compensation insurance coverage.” The Texas Department of Insurance states that Texas is the only state that allows private employers to make that choice.
An employer that opts out is called a non-subscriber. It gives up the main benefit of the system, which is the exclusive remedy rule. Under Section 408.001(a) of the Labor Code, an employee covered by workers’ compensation generally cannot sue the employer for a work injury. A non-subscriber has no such protection. You can sue it the way you would sue any other negligent company.
Section 406.033(a) of the Texas Labor Code takes three defenses away from a non-subscribing employer. In your suit, the statute says, “it is not a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.”
Those three arguments are how most workplace cases are ordinarily defeated. The Supreme Court of Texas confirmed the consequence in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000). The court held that “a nonsubscribing employer is not entitled to a jury question on its employee’s alleged comparative responsibility.” In plain terms, the jury is not asked what percentage of the fault was yours. If your employer was negligent at all, it answers for your damages.
The employer keeps two defenses. Under Section 406.033(c), it may argue that your injury was caused by an act you intended to bring about, or that it happened while you were intoxicated. Expect a non-subscriber to look hard at both.
Yes. Section 406.033(d) provides that “the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.” Non-subscriber status does not make the employer automatically liable. It removes the defenses, and you still carry the proof.
The Supreme Court of Texas set the outer limits in Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006). An employer “has no duty to warn of hazards commonly known or already appreciated by the employee” and “no duty to provide equipment or assistance that is unnecessary to the job’s safe performance.” Your case is strongest when you can show a specific failure: a missing machine guard, an untrained coworker put on a forklift, a known hazard nobody fixed, or staffing so thin that a two-person lift became a one-person lift.
Not before you are hurt. Section 406.033(e) of the Labor Code provides that any agreement to waive this claim before the injury “is void and unenforceable.” A line in your onboarding paperwork that gives up your right to sue does not bind you.
After an injury, a waiver is valid only if it meets every condition in Section 406.033(f) and (g). You must enter it voluntarily and with knowledge of its effect. It cannot be signed earlier than the tenth business day after your initial report of injury. You must first have a medical evaluation from a nonemergency care doctor.
The waiver must state the true intent of the parties in the document, and the waiver language must be conspicuous, in larger type or contrasting color. A settlement paper pushed at you in the first week after a fall does not meet those conditions.
The evidence is in your employer’s hands, and it moves quickly. Damaged equipment gets repaired, a missing guard gets replaced, incident reports get finalized, and camera video is overwritten on a fixed cycle. A preservation letter sent early is often the difference between proving how you were hurt and arguing about it later.
We also look for the paper trail around the benefit plan itself. Employers sometimes describe an in-house occupational plan in language that sounds like workers’ compensation and is not. The plan documents, the notice you were given at hire, and the notice posted at your workplace tell us what your employer did.
Two years. Under Section 16.003(a) of the Texas Civil Practice and Remedies Code, a suit for personal injury must be filed within two years of the day the injury occurred. A company benefit plan can set a much shorter internal deadline to report the injury, sometimes a matter of days. Report the injury in writing as soon as you can, and keep a copy.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
A negligence suit against a non-subscriber is an ordinary Texas personal injury case, and the damages are the ordinary ones. That means your medical expenses, past and future; your lost earnings and lost earning capacity; and your physical pain, mental anguish, physical impairment and disfigurement. Workers’ compensation pays defined income and medical benefits and does not pay damages for pain or mental anguish. A jury in a non-subscriber case can. What your case is worth depends on your injuries and your proof, and no one can responsibly put a number on it before the evidence is in.
We start by finding out what your employer is. We pull the employer’s coverage status, the plan documents you were given, and the notices the Labor Code required. If your employer is a non-subscriber, the first step is written notice to the employer to keep its records, and the negligence case is built from there.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas. We know how non-subscriber plans are written and how they are defended.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Your employer was required to tell you at hire and to post a notice at your workplace under Section 406.005 of the Texas Labor Code. If you are not sure, we can check the employer's coverage status for you. Do not rely on the words "benefit plan" or "occupational injury plan," which usually mean the employer does not subscribe.
No. Section 406.033(a) of the Labor Code provides that contributory negligence is not a defense in a suit against a non-subscribing employer. The Supreme Court of Texas held in Kroger Co. v. Keng that the jury is not even asked about your share of fault. The employer may still argue that you intended the injury or were intoxicated.
Yes. Under Section 406.033(d), you must prove negligence by the employer or by an agent or employee acting within the scope of employment. The employer is not automatically liable just because it opted out of workers' compensation.
No. Section 406.033(e) of the Labor Code makes any pre-injury waiver of a non-subscriber claim void and unenforceable. A waiver signed after an injury is valid only if it meets every condition in Section 406.033(f) and (g), including a ten business day waiting period and a prior medical evaluation.
Two years from the date of injury under Section 16.003 of the Texas Civil Practice and Remedies Code. The employer's benefit plan may require you to report the injury within days, so report it in writing right away and keep a copy.