My Employer doesn’t have workers comp Texas: What Are My Rights?
If you were injured on the job in Texas, you probably expected to file a workers’ compensation claim. But what happens when you report your injury, and your supervisor says, “We don’t have workers’ comp”?
Your first feeling is likely panic. How will I pay my medical bills? How will I support my family if I can’t work?
Here is the most important thing you need to know: In Texas, just because your employer doesn’t have workers’ comp, it does NOT mean you have no rights.
In fact, it means you may have a more powerful path to compensation. Your employer is what the law calls a “Non-Subscriber.” This status completely changes your legal options and, in many cases, gives you the right to sue your employer directly for 100% of your damages in a personal injury lawsuit.
This guide will explain what a “non-subscriber” is, what your rights are, and how to prove your case.
“Subscriber” vs. “Non-Subscriber”: The Critical Texas Difference
Texas is unique. It is the only state in the U.S. that allows private employers to “opt-out” of the state workers’ compensation system. This choice splits all Texas employers into two groups:
1. What is a “Subscriber”?
A Subscriber is an employer who DOES have traditional Texas Workers’ Compensation insurance.
- The Trade-Off for Employees: If you get hurt, you get benefits (medical bills and a portion of lost wages) automatically, regardless of who was at fault. This is a “no-fault” system.
- The Catch: In exchange for these “guaranteed” (but limited) benefits, you give up your right to sue your employer for negligence, even if their mistake caused your injury. You also cannot sue for pain and suffering.
2. What is a “Non-Subscriber”? (This is Your Employer)
A Non-Subscriber is an employer who DOES NOT have workers’ comp. They “opted out.”
- Your Right: Because they opted out of the “no-fault” system, they also lose all legal protection from lawsuits.
- This means you keep your full legal right to file a personal injury lawsuit against your employer to hold them accountable for their negligence.
The Power of a Texas Non-Subscriber Lawsuit
This is where your rights become clear. In a non-subscriber lawsuit, you are not limited to the small, fixed benefits of workers’ comp. You can sue your employer for the full range of damages caused by your injury.
This includes compensation for:
- Past and Future Medical Bills: 100% of your bills, not just what workers’ comp agrees to pay. This includes surgery, physical therapy, hospital stays, and any future care you may need.
- Past and Future Lost Wages: 100% of your lost income, not just the 70-75% partial wage replacement from workers’ comp. This also includes “loss of earning capacity” if you can’t return to your old job.
- Pain and Suffering: This is a major category. This is compensation for the physical pain, discomfort, and emotional distress of your injury. This is NOT available in a workers’ comp claim.
- Mental Anguish: Compensation for the anxiety, depression, PTSD, or other emotional trauma from the accident and its aftermath.
- Physical Impairment: Compensation for the loss of your ability to do things you once enjoyed (hobbies, sports, playing with your children).
- Disfigurement: Compensation for any permanent scarring or amputations.
As you can see, the potential for a full and fair recovery is often much higher in a non-subscriber lawsuit than in a standard workers’ comp claim.
How to Win Your Case: Proving Employer Negligence
There is one crucial difference: unlike workers’ comp (which is no-fault), you must prove your employer was negligent to win your non-subscriber lawsuit. You must show that your employer did something wrong (or failed to do something right) and that this failure caused your injury.
Common examples of employer negligence include:
- Failure to provide proper safety equipment (e.g., hard hats, steel-toed boots, safety harnesses, or gloves).
- Failure to properly train you or other employees on how to do the job safely.
- Failure to maintain equipment (e.g., a broken ladder, a faulty forklift, a machine with a missing safety guard).
- Creating a dangerous work environment (e.g., leaving spills on the floor, stacking heavy boxes unsafely).
- Understaffing (e.g., forcing one person to do a two-person lift).
- Failure to warn of known, non-obvious dangers on the worksite.
The Non-Subscriber’s BIG Disadvantage: The Law Is on Your Side
This is the most powerful part of Texas non-subscriber law. To encourage employers to get workers’ comp, the law punishes non-subscribers by stripping them of their three most powerful legal defenses.
In your lawsuit, your employer CANNOT argue:
- Contributory Negligence: They cannot claim, “It was partially your fault.” (The only exception is if they can prove you were 100% the sole cause, which is very rare).
- Assumption of the Risk: They cannot claim, “You knew the job was dangerous when you accepted it.”
- The “Fellow Servant” Rule: They cannot claim, “It wasn’t our fault; your co-worker caused the injury.”
What this means: If you can prove your employer’s negligence was even 1% the cause of your injury, they become 100% liable for all your damages. This gives injured workers a massive advantage in court.
Warning: What About “ERISA Plans” or Company Insurance?
Many non-subscriber employers (especially large ones like H-E-B, Walmart, or Home Depot) have their own private, internal injury-benefit plans. These are often called “ERISA plans” or “Employee Benefit Plans.”
BE VERY CAREFUL. These plans are NOT workers’ compensation.
- They are insurance plans written by the company, for the company.
- They often have very limited benefits (e.g., they only pay a small portion of medical bills).
- They have extremely short, strict deadlines (e.g., you must report the injury in writing within 24 hours).
- They may try to trick you into signing a waiver, giving up your right to sue in exchange for these small benefits.
Do not sign anything from your employer or their insurance administrator without having a lawyer review it. Accepting these benefits does not always stop you from filing a lawsuit for your full damages.
Frequently Asked Questions (FAQ)
Q: How do I know for sure if my employer is a Texas non-subscriber? A: You can ask your HR department directly, or a lawyer can look it up for you. The Texas Department of Insurance (TDI) also maintains a database of employers who are subscribers. If your employer isn’t on that list, they are likely a non-subscriber.
Q: How long do I have to file a non-subscriber lawsuit in Texas? A: The statute of limitations for a personal injury lawsuit in Texas is generally two (2) years from the date of your injury. However, you must act much faster to preserve evidence. Do not wait.
Q: Can I be fired for filing a non-subscriber lawsuit against my employer? A: While Texas is an “at-will” employment state (meaning you can be fired for almost any reason), it is illegal for an employer to retaliate against you (fire you) for filing a good-faith claim for a work-related injury.
Q: What should I do right now if I was hurt at a non-subscriber job? A: 1. Report your injury in writing (email or text) to your supervisor immediately. 2. Get medical treatment from a doctor you trust. Tell them it was a work injury. 3. Document everything. Take photos of the accident scene, the broken equipment, and your injuries. Get names of any witnesses. 4. Contact a Texas non-subscriber attorney. This is a very specific area of law, and you need an expert who understands it.
(Conclusion): Finding out your employer doesn’t have workers’ comp in Texas can be frightening, but it is not a dead end. It is the opening of a different legal door—one that can lead to a much fuller and fairer recovery for you and your family.
You have the right to hold your employer accountable for their negligence. Your path is a personal injury lawsuit, not a workers’ comp claim, and that gives you the power to demand compensation for 100% of your losses.
(Disclaimer: This article is for informational purposes only and does not constitute legal advice. If you were injured at work, contact a qualified Texas attorney specializing in non-subscriber cases immediately for a free consultation.)
