Can I sue my employer for an injury on the job?

Posted on February 1, 2022

A young man having a cast put on him by a nurse, possibly due to a workplace injury.

In limited circumstances, employees who have been hurt on the job can sue their employer. Generally speaking, however, workers’ compensation is the exclusive remedy. However, employees may be able to sue their employer if the employer intentionally causes the injury, fraudulently conceals their connection to the injury, acts in a dual capacity, or does not carry workers’ compensation insurance.

Hurt workers may also be able to file a personal injury lawsuit against a third party who was responsible for the employee’s injuries that were suffered on the job.

Can I sue my employer for a workplace injury?

Generally, employees who have suffered a workplace injury will have to file a workers’ compensation claim to cover their injuries. This is called the exclusive remedy rule. However, depending on the state, there are 4 important exceptions that may apply to this rule. If one is in play, the hurt worker can sue his or her employer, rather than collect workers’ compensation. These exceptions are when the employer:

intentionally caused the injury,
fraudulently concealed the injury or its connection to the workplace,
hurt the worker in a different capacity than as the worker’s employer, or
does not carry workers’ compensation insurance.

Additionally, hurt workers may be able to file a personal injury claim against someone other than their employer if they were hurt on the job by a third party.

Pursuing a tort claim outside of the workers’ compensation system has its pros and cons:

a personal injury claim can recover a wider variety of legal damages, but
workers’ compensation claims do not require the victim to prove that the employer was negligent or culpable.

The compensation that is available is very important. When hurt workers file a workers’ comp claim, they can receive:

medical benefits, including payment of medical expenses, and
disability benefits to cover at least a portion of their lost wages.

However, filing a personal injury claim can recover full compensation that covers all of the victim’s:

medical bills,
lost wages,
reduced earning capacity, if the injury will cause long-term professional difficulties,
pain and suffering,
loss of consortium, and potentially
punitive damages.

Pursuing your claim as a personal injury lawsuit rather than as a workers’ compensation case can ensure that you recover full compensation for your job injury. The legal advice of a personal injury lawyer or workers’ compensation attorney can help you make an informed decision about what to do next.

Intentional injuries

Workers’ compensation laws are designed to cover an injured worker’s losses for accidents that happen on the job. If an employer intentionally hurts one of its workers, it was not an accident. The injured worker can file a personal injury lawsuit against his or her employer, rather than a workers’ compensation claim.

These injuries are often the result of an employer’s:

In some states, the employer can be liable in a personal injury lawsuit if it ratifies, approves of, commands, or authorizes the infliction of injuries on the victim by a coworker or supervisor.¹

Some states hold employers liable for knowingly removing or failing to install safety guards on heavy machinery.²

In a few states, hurt workers can hold their employer liable for workplace injuries caused by less than intentional conduct.

Some states extend the exception for an employer’s intentional actions to include conduct that is “deliberate.”³

Still others let employees sue their employers if the employer’s unintentional conduct was “substantially certain to cause injury.”⁴

A couple of states require the employer to act with knowledge that an injury was virtually certain to occur.⁵

However, lots of states still refuse to allow personal injury claims against an employer for conduct that was not strictly intentional.⁶ No state allows these claims to proceed if they are based on the employer’s negligence.

Fraudulent concealment

Workers may also be able to sue their employers if the employer fraudulently conceals the injury. This often involves a disease or illness due to toxins in the workplace. While the underlying illness will be covered by workers’ compensation, victims can take their employer to court for fraudulently concealing the problem from them.

For example: David works in a factory for 30 years. During that time, his employer provides free physical examinations by a company doctor. After David has worked there for 10 years, these exams reveal a lung disease caused by inhaling dust in the workplace. The employer does not tell David of this condition. Subsequent exams by the employer show that the condition is getting worse. David continues to work for 20 years, unaware of his medical condition, in the same role as before and without taking further safety precautions.⁷

Not all states allow victims of fraudulent concealment to get around the exclusive remedy of workers’ comp. Many states still require victims to go through the regular workers’ compensation process.

Dual capacity

In some cases, employers interact with their employees in a dual capacity; both as an employer and as something else. In some states, if the employee is hurt by their employer outside of the employment context, the victim can sue their employer without going through the workers’ compensation system.

For example: A nurse gets hurt at work. Her injury is covered by workers’ compensation, and she gets treated by her employer, who is a chiropractor. The treatment exacerbates her injury.⁸

Some examples of employers interacting with an employee in a capacity other than as an employer include:

owning the premises where the worker slipped and fell,
acting as a vendor in the workplace, like operating a cafeteria for workers,
providing negligent medical care to an employee who was already hurt in a workplace accident, and
hurting the employee when he or she uses a product that was defectively manufactured by the employer.

Many states limit which dual capacities can lead to a personal injury lawsuit.⁹ Some states do not allow lawsuits based on dual capacity, at all.¹⁰

No workers’ compensation insurance

Perhaps the most common way for employees to sue their employer for a workplace injury is if the employer does not provide workers’ compensation coverage. This can happen if:

the employer is not legally required to carry workers’ compensation insurance,
the employer has decided to self-insure for workers’ compensation,
the worker does not fall within the employer’s workers’ compensation coverage, often because he or she is an independent contractor or a subcontractor, or
the employer is violating state law by not carrying coverage.

If the employer does not provide workers’ compensation coverage, then the employer cannot claim that the state’s workers’ compensation act is the exclusive remedy available for the worker.

What is a third-party claim?

A third-party claim is a personal injury lawsuit against someone who hurt the victim on the victim’s worksite. The defendant in these cases is not the victim’s employer, though. It is often:

the victim’s coworker or supervisor,
a customer or client of the employer,
the property owner where the worksite is located, or
one of the employer’s vendors.

These lawsuits demand compensation from one of these people when they were the ones responsible for the victim’s work-related injuries, even though the accident happened on the job.

For example: Jerry is a painter who works for a painting company. He goes to Nancy’s house to paint the building’s exterior. Nancy’s dog gets loose and bites Jerry.

An experienced attorney from a reputable law firm can help victims pursue their legal rights against a third party.

Will I still receive workers’ compensation benefits?

Generally, workers who sue their employer or a third party will still receive workers’ compensation benefits. However, if the victim receives a settlement or verdict in the personal injury case, many states require them to pay back an equal amount of workers’ comp benefits. This is to prevent the victim from receiving a windfall.

What is the law in California?

In California, the general rule is that workers’ compensation is the exclusive remedy for workplace injuries.¹¹

However, California lets injured workers sue their employer if the injury:

was caused by a willful physical assault by the employer,
was aggravated by fraudulent concealment,
was caused by a product that was defectively manufactured by the employer and was sold, leased, or bought by a third party for the employee’s subsequent use, or
would not be covered by workers’ compensation law.¹²

In any other circumstance, workers’ compensation continues to be the worker’s exclusive remedy.

This means that California does not recognize the full dual capacity doctrine, anymore. While California was the first state to let employees sue their employer for injuries caused outside the line of work,¹³ that court case has since been legislatively overturned with the passage of California Labor Code section 3602. It now only allows for lawsuits where the employer’s dual capacity was as the maker of a defective product.¹⁴

However, some California courts have stretched the meaning of injuries that are not covered by workers’ compensation to include some instances that are close to dual capacity cases. In particular, courts have let claims based on premises liability move forward.¹⁵

Injured employees can also sue coworkers in a third party claim for injuries or fatalities caused by the coworker’s:

willful and unprovoked physical act of aggression, or
intoxication.¹⁶

If the worker does pursue a personal injury claim against his or her employer and receives a settlement or judgment, any workers’ compensation benefits already paid will be credited towards that award.¹⁷

Legal References:

See, e.g., Deutsch v. Great Atlantic & Pacific Tea Co., Inc., 452 N.Y.S.2d 469 (1982).
See, e.g., California Labor Code 4558 LAB.
See, e.g., Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W.Va. 1978) and West Virginia Code Annotated 23-4-2(d)(2)(A)-(B)(ii).
Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985).
See Figueroa v. Delant Construction Co., 118 So.3d 272 (Fla Dist. Ct. App. 2013).
See, e.g., Birklid v. Boeing Co., 127 Wash.2d 853 (1995) and Schwindt v. Hershey Foods Corp., 81 P.3d 1144 (Colo. App. 2003).
Facts from Delamotte v. Unitcase Division of Midland Ross Corp., 411 N.E.2d 814 (Ohio Ct. App. 1978).
Facts from Duprey v. Shane, 39 Cal.2d 781 (1952).
See, e.g., California Labor Code 3602 LAB.
Longever v. Revere Copper & Brass, Inc., 408 N.E.2d 857 (Mass. 1980).
California Labor Code 3600 LAB.
California Labor Code 3602(b)-(c) LAB.
Duprey v. Shane, 39 Cal.2d 781 (1952).
California Labor Code 3602(b)(3) LAB.
See Weinstein v. St. Mary’s Medical Center, 58 Cal.App.4th 1223 (1997) (victim of work injury went to the hospital where she worked for medical treatment, slipped, and fell) and Miller v. King, 19 Cal.App.4th 1732 (1993) (victim slipped and fell on the job and sued property owners, who happened to be shareholders in the employer’s corporation).
California Labor Code 3601(a) LAB.
California Labor Code 3600(b) LAB.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.